A 
CONCISE   TREATISE 


ON  THE 


LAW  OF  WILLS 


BY 

WILLIAM   HERBERT   PAGE 

^Of  the  Columbus,  Ohio,  Bar,  Professor 
of  Law  in  the  Ohio  State  University. ; 


CINCINNATI,  O. 

W.  H.  ANDERSON   &   CO, 

Law  Book  Publishers. 
1 90 1. 


1901 

COPYRIGHT. 

W.    H.    ANDERSON    &    CO. 


T 

\90\ 


To  my  friend  and  former  instructor, 

WIIvIvIAM  FORREST  HUNTER, 

Dian  oj  the  College  of  Laiu  of  the 
Ohio  State  University, 

THIS    VOLUME     IS    DEDICATED. 


6708-^0 


PREFACE. 

The  object  of  this  volume  is  to  set  forth,  in  a  form  which  is 
easy  of  comprehension  for  the  student,  and  with  a  scope  and 
thoroughness  of  statement  which  it  is  hoped  will  make  it  of 
value  to  the  practicing  lawyer,  the  law  of  wills,  as  applied  by 
Federal  and  State  C^ourts  in  the  United  States.  English  cases 
have  not  been  ignored ;  subjects  which  are  collateral  to  the  law 
of  wills,  but  necessary  to  its  complete  understanding,  have  been 
treated  so  as  to  present  the  subject  completely  and  fully;  the 
older  leading  cases  upon  the  subject  have  been  cited;  but  the 
greatest  space  and  attention  has  been  given  to  the  law  of  wills 
proper,  and  to  an  exhaustive  consideration  of  the  recent  adjudi- 
cations upon  that  subject  in  the  United  States. 

The  law  of  probate  and  contest  is  discussed  in  connection 
with  the  law  of  wills,  contrary  to  the  usual  custom.  Questions 
both  of  substantive  law  and  of  evidence  are  so  involved  with 
questions  of  probate  and  contest  that  a  complete  though  elemen- 
tary statement  of  the  latter  subjects  finally  appeared  to  be  the 
method  of  treating  the  subject  most  economical  in  time  and 
space. 

The  law  of  devises  and  legacies  is  so  essential  to  an  under- 
standing of  the  diiferent  methods  of  deducing  and  enforcing 
the  intention  of  testator  in  states  of  fact  different  from  those 
originally  contemplated  by  him,  that  its  presence  in  a  text-book 
upon  wills  is  not  so  unusual  a  feature  as  to  call  for  comment. 


iv  PREFACE. 

The  history  of  the  law  of  wills  is  so  essential  to  an  appre- 
ciation of  the  present  value  and  application  of  the  older  author- 
ities, and  to  a  clear  understanding  of  the  present  state  of  the 
law,  that  an  outline  of  the  general  development  of  the  law  and 
the  particular  stages  in  the  evolution  of  the  separate  topics  has 
proved  necessary.  In  wills,  more  than  in  almost  any  other  sub- 
ject, development  has  been  hastened  or  modified  by  legislation; 
as  a  result,  the  essential  continuity  of  its  evolution  is  less  ap- 
parent and  needs  sharper  emphasis. 

In  arrangement  of  topics,  questions  of  evidence  have  been 
treated  separately  from  questions  of  substantive  law.  Greater 
clearness  in  statement  is  thus  obtained  without  sacrifice  of 
space. 

The  statement  of  the  law  of  wills  in  the  space  of  one  volume 
has  necessitated  compression  of  language  and  treatment,  but 
it  is  hoped  that  tliis  has  not  prevented  that  clearness  of  state- 
ment which  is  indispensable  to  any  law  book  of  value  to  student 

or  practitioner. 

William    Herbert    Page. 

Columbus,  Oliiu,  Fehruai-y,  1901. 


CONTENTS. 


CHAPTER   I. 

INTRODUCTION. 

PAGE. 

§1.     The  place  of  the  will   at   modern   law 1 

§2.     Defi-nitions 2 

CHAPTER   n. 

HISTORY  OF  THE  LAW  OF  WILLS  AND  TESTAMENTS. 

§3.     Wills    in    primitive   nations.. 4 

§4.     Effect  of  development  of  property  rights  upon  the  law  of  wills.  .  .  4 

§5.     Causes  of  the  growing  importance  of  the  will. — Examples 5 

§6.     Use  of  the  word  "will"  in  Greek  and  Roman  law 6 

§7.     Effect  of  Roman  law  of  wills  on  the  English  law 6 

§8.     English    will    in    pre-Norman    period 7 

§9.     Divergence  of  history  of  will  and  testament  under  feudalism. ...  8 

§10.     The  will  at  common  law  abolished  by  feudalism 9 

§11.     Attempt  to  revive  wills  under  statute  De  Donis 11 

§12.     Exceptions   to  common  law  rule 11 

§13.     Wills    in    equity 11 

§14.     The   Statute   of   Uses 12 

§15.     The    Statute    of    Wills 12 

§16.     Abolition  of  feudal   tenures 14 

1^17.     Testaments  in  pre-Norman  times 15 

§18      Doctrine   of    reasonable    parts 15 

§19.     Power  of  testator  to  dispose  of  his  entire  personal   property.  .  16 

§20.     History  of  the  law  of  wills  and  testaments  in  the  United  States.  16 


CHAPTER    in. 

NATURE  AND  EXTENT  OF  TESTAMENTARY  POWER. 

§21.     General  extent  of  legislative  control  before  testator's  death 18 

§22.     General  extent  of  legislative  control  after  testator's  death 20 

§23.     Power  of  testator  to  exclude  his  wife  and  children  from  a  share 

in  his  estate. — General  rule 21 


viii  CONTENTS. 

PAGE. 

§24.     Exclusion  of  wife  and  children  in  favor  of  mistress  or  illegitimate 

children 22 

§25.     Exclusion  of  wife  and  children  in  favor  of  charities 22 

§26.     Perpetuities 25 


CHAPTER    lY. 

THE  LAW   BY   WHICH   A  WILL   IS   GOVERNED. 

§27.  General   principles   controlling   conflict 26 

§28.  General  rule  as  to  realty 26 

§29.  Law  controlling  in  construction  of  will 28 

§30.  Statutory  rule  as  to  law  controlling 29 

§31.  General    rule    as    to    personalty 29 

§32.  Effect  of  change  of  domicile 31 

§33.  Distinction  between  realty   and   personalty 31 

§34.  Law    controlling    in,    conversion 31 

§35.  Law   controlling   in   trusts 32 

§36.  Law  controlling  as  to  capacity  of  beneficiary  to  take 33 

§37.  Law  controlling  as  to  lapse 34 

§38.  Law  controlling  as  to  election 35 

§39.  Law  controlling  as  to  powers 35 

§40.  Law  controlling  contracts  to  make  a  will 35 

§41.  Rule  in  absence  of  evidence  as  to  what  law  of  domicile  is 35 


CnAPTER   Y. 

THE  INHERENT  ELEMENTS  OF  A  WILL. 

§42.     Classification   of   elements   into   inherent  and   extrinsic 36 

§43.     Origin  and  classes  of  inherent  elements 37 

§44.     Animus  testandi  not  dependent  on  use  of  word  "will." 38 

§45.     Animus  testandi. — What  wishes  are  testamentary 39 

§46.     Animus  testandi. — What   disposition   is   not  testamentary 40 

§47.     Animus  testandi. — Realty  of  intention 41 

§48.     Animus  testandi. — Expression  of  intention  in  definite  terms 44 

§49.     Animus  testandi. — Intention  that  instrument  shall  take  eflfect  only 

at  death  of  testator 45 

§50.     Revocability 48 

§51.     Instruments  lacking  some   inliorent  elements 49 

§52.     Confusion  between  deeds  and  wills. — Instruments  held  deeds....  49 
853.     Confusion  between  deeds  and  wil's. — Instruments  held  wills....  51 
§54.     Confusion   between   wills   and   contracts. — Instruments   held   con- 
tracts   55 

§55.     Confusion  between  wills  and  contracts. — Instruments  held  wills.  56 

§56.     Confusion  between  wills  and  orders 57 


CONTENTS.  ^^ 

PAGE. 

59 
§57.     Will  in  form  of  power  of  attorney 59 

§58.     Informal  wills g2 

§59.     Precatory  words .■■■",", 64 

§60.     Contingent  wills.-What  wills  are  mcruded ■.■.■.■.".■  64 

§61.     Validity   of   contingent  wills 66 

Examples   of   contingent  wills ^^ 

Examples  or  wills  held  not  contingent ^^ 

Contingency  applying  to  only  part  of  will 


§62. 
§63. 
§64. 


CHAPTER   VI. 

JOINT  AND  MUTUAL  WILLS. 

69 

865      Wills  not  included  under  this  chapter.  ••••■•; 

§66.     Wills  included  under  this  chapter.-Classification •  •  •    ^^ 

§67.     Validity  of  joint  and  mutual  wills ,....14: 

§68      When   admissible   to  probate ^^ 

§69.     Revocability  of  joint  and  mutual  wills 

CHAPTER  YII. 

THE  CONTRACT  TO  MAKE  A  WILL. 

§70.    Validity  of  contracts  to  bequeath  or  devise  and  revocability  of  ^^ 

wills    made    thereunder 

§71.     Necessity  of  all  the  elements  of  a  valid  contract. .  . .  . .  •  •  •  •  •  •  •  •  •   ^^ 

§72.     Consideration g3 

§73.     Certainty ...   85 

§74.     The   Statute  of  Frauds g^ 

§75.     Part  performance gg 

§76.     What  is  a  breach  of  such  contract ^^ 

^77      Construction    and    performance ^^ 

§78.     Remedies   for   breach   of   contract   at   law j^^ 

§79.     Remedy  for  breach  of  contract  m  equity '.'.]'.'.'.'.'.'.   95 

§80.     Election   of   remedies 95 

§81.     Evidence •" 97 

§82.     Parties ,      .       x  <)7 

§83.     Time  at  which  statute  of  limitations  begins  to  run 


CHAPTER   VHI. 

CAPACITY  TO  MAKE  A  WILL. 

§84.     History  of  the  law  of  testamentary  capacity 98 

§85.     Time  at  which   capacity   must  exist ^ '.'!'.'..   99 

§86.     Outlawry   and   attainder 


X  CONTENTS. 

PAGE. 

§87.     Alienage 100 

§88.     Nonage 100 

§89.     Coverture   at   common   law. — Testaments 101 

§90.     Coverture   at   common   law. — Wills 103 

§91.     Capacity  of  married  woman  under  powers 104 

§92.     Capacity  of   married   woman   in   equity 105 

§93.     Capacity  of  married  woman  under  modern  statutes 106 

§94.     Lack  of  mental  capacity. — Is  perfect  sanity  a  requisite  of  testa- 
mentary   capacity  ? 108 

'§95.     Is  criminal   responsibility  a  test  of  testamentary  cajmcity?. . .  .110 

§96.     Is  contractual   capacity  a  test  of  testamentary  capacity? Ill 

§97.     Test  of  testamentary  capacity  now  adopted 114 

§98.     Degree  of  memory  requisite. — Effect  of  size  of  estate 117 

§99.     Classes   of   those   mentally    incapacited. — General    discussion.  ..  .118 

§100.     Idiocy 119 

§101.     Imbecility 120 

§102.     Senile    dementia.— Old    age 121 

§103.     Insanity 122 

§104.     Insane  delusion. — Definition 123 

§105.     Analysis  of  insane  delusion. — Mistake  of  fact 125 

§106.     Analysis  of  insane  delusion. — Mistake  not  based  upon  evidence..  127 
§107.     Analysis  of  insane  delusion. — Mistake  not  removable  by  evidence.128 

§108.     Effect  of  insane  delusion  on  testamentary  capacity 128 

§109.     Lucid  interval    130 

§110.     Eccentricity 132 

§111.     Spiritualism 133 

§112.     Drunkenness  and  the  efi'ect  of  drugs 134 

§113.     Delirium 135 

§114.     Delirium    tremens 136 

§115.     Persons    under    guardianship 136 

§116.     Disease,  great  weakness,   and   approaching  death 137 

§117.     The    deaf,    dumb    and    blind 138 


CHAPTER    IX. 

MISTAKE,  FRAUD,  UNDUE  INFLUENCE  AND  DURESS. 

§118.  Classes   of   mistake 140 

§119.  Mistake    in    execution 140 

§120.  Mistake  in   inducement 141 

§121.  Mistake.— Statutory   rule 142, 

§122.  Fraud. — General  discussion  and  classification 143 

§123.  Fraud  in  execution 143 

§124.  Fraud  in  inducement 144 

§125.  Undue  influence. — Definition 145 

§126.  Theory  of  undue   influence 145 

§127.  Elements  of  undue  influence 147 

§128.  Classes  and  forms  of  undue  influence 149 


CONTENTS.  xi 

PAGE. 

§129.  Who   may  exert   undue   influence 151 

§130.  Time  at  which  undue  influence  may   exist 151 

§131.  Efi"ect    of    undue    influence 152 

§132.  Injustice  of   will   not   undue   influence 152 

§133.  Duress 15* 


CHAPTER   X. 

WHAT  CAN  BE  DISPOSED  OF  BY  WILL. 

§134.  Property    in    general 156 

§135.  Ownership  of  property  disposed  of  by  will 156 

§136.  Insurance   policies 15' 

§137.  Dower,  curtesy,  and  distributive  share  of  personalty 158 

§138.  Homestead  rights 1^9 

§139.  Community  property 161 

§140.  Non-surviving    interests 161 

§141.  After-acquired    personalty 162 

§  142.  After-acquired    realty 163 

§143.  Classes   of   property   devisable. — ^Realty   in   general 164 

§144.  Effect  of   disseisin 164 

§145.  Estates  in  futuro 165 

§146.  Possibilities 1^^ 

§147.  Rights    of    entry    devisable 166 

§148.  Equitable  interests 168 

§149.  Rights    of    creditors 169 


CHAPTER   XI. 

WHO  CAN  TAKE  UNDER  A  WILL  AND  TESTAMENT. 
§150.     Aliens. — Common    law    rule 170 


§151. 


Aliens. — Modern  statutory  rule 171 

§152.     Private    corporations. — General    rule 172 

§153.     Private    corporations. — Special     statutory     and     constitutional 

■   •  1  7*? 

provisions '^"^ 

§154.     Public   corporations 17* 

§155.     Convicts • 17* 

§156.     Illegitimate   children 175 


CHAPTER    XH. 

EXTRINSIC    ELEMENTS    OF    A   WRITTEN    WILL    OF    THE 
ORDINARY  TYPE. 

PAKT    I — INTRODUCTION. 

!l57.     History  of  the  Law  of  the  Extrinsic  Elements  of  Wills 178 

?158.     General   scope  of  modern  statutes 180 


xii  CONTENTS. 

PART    II WRITING. 

PAGE. 

§159.     Writing  materials  which   can   be  used 181 

§160.     Language  in  which  the  will  may  be  written 182 

§1G1.     Writing  on  several  pieces  of  paper 182 

§162.     Incorporation  of  documents 183 

§163.     Incorporation  of  documents. — Reference  to  document 185 

§164.     Incorporation  by  the  use  of  asterisks ■ 185 

§165.  Actual  existence  of  document  at  time  of  execution  of  will....  187 

§166.     Identification  of  document  to  be  incorporated 187 

§167.     Effect  of  incorporation  of  document  in  will 189 

§168.     Reference    to    verbal    instructions 190 

§169.     Document  used  to  identify  beneficiary 190 

PART   III SIGNATURE   OF  TESTATOR. 

§170.     Necessity    of    seal 190 

§171.     Methods  of  signing 191 

§r<2.     Signature   by   name 191 

§173.     Signature   by   mark 191 

§174.     Signature   by   other    person 194 

§175.     Presence    of    testator .  195 

§176.     Express   direction   of   testator 195 

§177.     Who   can   sign   for   testator 196 

§178.     Form   of   signing  for   testator - 196 

§179.     Name  of  testator  added  by  other  to  his  mark 197 

§180.     Guiding  the  hand  of  testator  as  signature  by  testator 198 

§181.     Place  of  signature  upon  will. — Early  statutes 199 

§182.     Place  of  signature  upon  will. — Modern  statutes 201 

§183.     Signature  with  reference  to  attestation  clause 201 

§184.     Effect  of  blanks  in  body  of  the  will 202 

§185.     Effect  of  blank  immediately  before  signature 202 

§186.     Additions    after     signatMre 203 

§187.     Signature  opposite  the  end  or   foot  of  the  will 207 

PART    IV. ATTESTATION    AND    SUBSCRIPTION. 

§188.     Attestation   and    subscription   entirely   statutory 207 

§189.     Distinction  between   attestation   and   subscription 208 

§190.     Number  of  subscribing  witnesses 209 

§191.     What  determines  competency  of  subscribing  witnesses 210 

§192.     Time  at  which   competency   must  exist 212 

§193.     Who    are    competent    attesting    witnesses 213 

§194.     Who  are  beneficiaries. — Nature  of   interest 213 

§19,5.     Effect    of    release 215 

§196.     Effect   of   modern   statutes 215 

§197.     Husband   or   wife  of   beneficiary. — Common   law  rule 216 

§198.     Effect    of    modem    statutes 217 

§199.  Competency  of  heir  of  beneficiary. — Probate  judge,  executor,  etc. .219 

§200.     Husband  of  testatrix 221 


CONTENTS.  xiu 

PAGE. 

§201.     What   subscribing  witnesses  are   required   to  attest 222 

§202.     The  signature  of   testator  to  be  attested   by  witnesses 222 

§203,     Acknowledgment  of  signature  by  testator  to  be  attested 222 

§204.     Acknowledgment  of  signature  by  otlier 223 

§205.     Form    of    acknowledgment 224 

§206.     Acknowledgment  of  will   instead  of   signature 220 

§207.     Effect  of  failure  to  sign  or  acknowledge  before  witnesses 228 

§208.     Capacity  of  testator  to  be  attested  by  witnesses 228 

§209.     Presence. — Mental  cognition 228 

§210.     Presence. — Physical    proximity 230 

§211.     What   is  a   reasonable   effort 231 

§212.     What  testator  or  witness  must  be  able  to  see 233 

§213.     Minority  view  of  meaning  of  presence 233 

§214.     What  is  presence  of  one  who  is  blind 234 

§215.  Effect  of  acknowledgment  by  witness  of  his  signature  not  made 

in  presence  of  testator 235 

§216      Presence  of  each   other 235 

§217.     Aniiiius    attestandi 236 

§218,     Request  of  testator 237 

§219.     Signature  by  witness 238- 

§220.     Signature  of  witness  by  another 239 

§221     Place  of  signature  of  witness 240 

§222,     Order  of  signing 241 

§223.     Necessity  and  value  of  attestation  clause. 244 

§224.     Residence  of  witnesses 245 

PART     V PUBLICATION. 

§225,     Publication.— Definition 245 

§226.     Form  of  publication 245 

§227,     Necessity  of  publication 247 

§228.  Publication  not  a  substitute  for  acknowledgment  of  signature.  .249 


CHAPTER    XIII. 

EXTRINSIC   ELEMENTS   OF   HOLOGRAPHIC,   MYSTIC   AND 
NUNCUPATIVE   WILLS. 

PART    I— HOLOGRAPHIC    WILLS. 

§229.     General  nature  of  Holographic  wills 250 

§230.     Formalities  of  Holographic  wills 251 

§231,     Place  of  deposit  of  Holographic  will 253 

PART    II — NUNCUPATIVE    WILLS    AT   COMMON    LAW. 

§232.     Definition  and  history  of  law  of  nuncupative  will 254 

§233.     Nuncupative  wills  made  by  testators  of  favored  classes 257 

§234.     W^hen  nuncupative  wills  can  be  made  by  testators  of  unfavored 

classes 258 


xiv  CONTENTS. 

PAGE. 

§235.     Place  where  nuncupative  wills  can  be  made  by  member  of  un- 
favored class 261 

§236.     The  inherent  elements  of  the  nuncupative  will 261 

§237.     The  extrinsic  formalities  of  the  nuncupative  will. — The  rogatio 

testium 263 

§238.     Number  and  competency  of  witnesses  to  nuncupative  wills.... 265 

§239.     Reduction  to  writing 266 

§240.     What  can  pass  by  nuncupative  will 267 

PART    III — NUNCUPATIVE    TESTAMENTS    AT    LOUISIANA    LAW. 

§241.     Nuncupative  testaments  by  public  act 268 

§242.     Nuncupative  testaments  by  private  act 270 

PART     IV MYSTIC     TESTAMENTS. 

§243.     Mystic    testaments 270 


CHAPTER    XIV. 

REVOCATION. 

§244.     Nature  of  revocation  and  history  of  doctrine  of  revocation 272 

§245.     Classes  of  revocation 274 

§246.     Revocation  by  means  of  acts  manifest  on  face  of  the  will 275 

§247.     Act  manifest  on  instrument. — Burning 275 

§248.     Tearing • 276 

§249.     Cancelling 277 

§250.     Mutilation 280 

§251.     Obliterating 281 

§252.     Destruction 281 

§253.     Destruction  of  duplicate  wi^l 282 

§254.     Partial  revocation  by  act  manifest  on  the  will 283 

§255.     Revocation    prevented    bj'    fraud    285 

§256.     Animus    revocandi. — In    general 288 


§257.     Animus  revocandi 
§258.     Animus  revocandi 


. — Who  is  capable  of  revoking  a  will 289 

—Mistake  of   fact 290 


§259.     Animus  revocandi. — Mistake   of   law 290 

§260.     Animus  revocandi. — Attempt   to   alter   will 291 

§261.  Animus  revocandi. — Destruction   without   testato'-'s   authority .  .292 

§262.     Revocation  by  later  instrument. — In  general 292 

§263.     Revocation   by    informal    instrument 293 

§264.     Revocation   by   formal    instrument 293 

§265.     Revocation   by  later   instrument  not  a   will 295 

§266.     What    shows    testator's    intention    to    revoke    will 296 

§267.     Revocation  by  later  will. — Express  revocation  clause 296 

§268.  Revocation  by  later  will. — Xo  clause  of  express  revocation.  ..  .298 

$269.  Revocation  by  later  instrument. — Distinction   between  will  and 

codicil.  .' 299 


CONTENTS.  XV 

PAGE, 

§270.     Effect  of  loss  of  later  instrument 301 

§271.     Effect  of  revocation  of  later  instrument  at  common  law 302 

§272.     Effect  of  revocation  of  later  instrument  under  modern  statutes  in 

England 303 

§273.     Effect  of   revocation   of   later   instrument. — American   rule 304 

§274.     Effect  of  revocation  of  later  instrument. — American  statutes.  .306 

§275.     Conditional    revocation. — In    general 307 

§276.     Conditional   revocation  by  act  manifest  on  instrument 308 

§277.     Conditional    revocation    by    later    instrument 309 

§278.     Revocation  by  alteration  of  estate. — At  common  law  and  equity.. 313 

§279.     Revocation  by  alteration  of  estate. — ^Modern  statutes 316 

§280.     Revocation   by  change  of  circumstances. — In  general 318 

§281.     Effect  of  marriage  on  will  of  husband. — Common  law  and  statute. 319 

§282.     Effect  of  birth  of  child  on  will  of  father. — Common  law 322 

§283.     Effect  of  marriage  and  birth  of  child  on  man's  will 322 

§284.     Effect  of  marriage  on  will  of  wife. — Common  law  and  statute.  .  .324 

§285.     Effect  of  change  not  specified  by  law 327 

§286.     Effect   of  alteration   of   circumstances   after   revocation   is   com- 
plete  328 

§287.     Effect  of  birth  of  child  upon  will  of  childless  parent 328 

§288.     Effect  of  birth  of  child  upon  will  of  parent  who  has  other  children 

living 329 

§289.     Construction  of  these  statutes. — "Having  no  child." 330 

§290.     Construction  of  these  statutes. — "Subsequent"  birth,  or  having 

child  "afterward" 331 

§291.     Omission   of  children   from   a   will 332 

§292.     What  shows  intentional  omission  of  a  child 333 

§293.     What  is  a  provision  for   a  child 336 

§294.     Evidence. — How  intention  to  omit  must  be  shown 339 

§295.     Necessity  of  contest  bv  omitted  children 339 

§296.     Effect  of  omission  upon  other  provisions  of  will 340 


CHAPTER   XY. 

ALTERATION   AND    PARTIAL    SPOLIATION. 

§297.  General  principles ^ 342 

§298,  Definition  of  alteration 342 

§299.  Effect  of  alteration 342 

§300.  Definition  of  spoliation 343 

§301.  Effect  of  spoliation  by  a  stranger  to  the  will 344 

§302.  Effect  of  spoliation  by  a  beneficiary 344 


xvi  CONTENTS. 

CHAPTER    XYI. 

REPUBLICATION. 

PAGE. 

§303.  Definition 345 

§304.  History  of  law  of  republication 345 

§305.  Modern    statutes 346 

§306.  Methods  of  republication. — Re-execution  .' 346 

§307.  Methods    of    re-execution. — Codicil 347 

§308.  General  effect  of  republication 348 

§309.  Application    of    the    doctrine    of    republication. — After-acquired 

realty.  . 349 

§310.  Revivor  of  prior  revoked  will 349 

§311.  Re-execution  cures  a  defectively  executed  will 350 


CHAPTER    XYII. 

PROBATE  AND  CONTEST. 

§312.  History  and  general  nature 352 

§313.  Necessity  of   probate 356 

§314.  What  must  be  probated 358 

§315.  The  court  of  probate  powers 360 

§316.  Effect  of  delay  in  probate 362 

§317.  Who  may  propound  a  will  for  probate 363 

§318.  Procedure  at   probate — Petition 364 

§319.  Notice 365 

§320.  Examination  of  witnesses  ex  parte 368 

§321.  Contest. — Limitations 371 

§322.  Inconsistent  wills 374 

§323.  Nature    of    contest 375 

§324.  Necessity  of  parties. — Notice 377 

§325.  Who   may  contest 378 

§326.  Estoppel 382 

§327.  Who   may    defend 383 

§328.  Pleadings .' 384 

§329.  Issue  in  probate  and  contest 385 

§330.  Procedure  at  trial. — Open   and  close 388 

§331.  Right  to  a  jury  in  contest 390 

§332.  General  powers  of  the  court 392 

§333.  Charge   of   court 393 

§3,34.  Evidence  sufficient  to  support  a  verdict 397 

§335.  Form  of  verdict  and  judgment 399 

§336.  Effect  and  operation  of  order  of  probate 401 

§337.  Direct  attack 401 

§338.  Appeal    and    error 403 

§339.  Collateral  attadk. — On  whom  is  probate  binding 403 


CONTENTS.  ^vu 

PAGE. 

§340.  Collateral  attack  not  allowed 

§341  What  questions  are  determined  by  probate -J 

§342  Effect  of  saving  right  of  contest  to  certain  parties 41. 

§343.  Effect  of  judgment  refusing  to  admit  will  to  probate.-rxe-pro-^^^^ 

pounding '...... 41*4 

§344.  Costs ^jg 

§345.  Attorney  fees • ■•; 

§346.  Validity  of  agreements  with  reference  to  contest '*'■* 


CHAPTER   XYIII. 

PROBATE  AND  CONTEST  OF  LOST  AND  SPOLIATED  WILLS 
AND  FOREIGN  WILLS. 

r LOST   AND    SPOLIATED   WILLS. 

420 

§347.     Definition ^„ 

§348.     Effect  on  probate  of  loss  or  total  spoliation  of  will 4ZU 

§349.     The  court ^22 

§350.     Parties ^^2 

§351.     Notice ^22 

§352.     Petition ^22 

§353.     Jury ^23 

§354.     Contest 

II FOREIGN     WILLS. 

,  ^       .  .,,  423 

§355.     Definition  of  foreign  will ^^^ 

§356.     Nature  of  probate  of  foreign  will ^^^ 

§357.     Parties    and    procedure ^^^ 

§358.     Registry  of  foreign  will 


CHAPTER    XIX. 

EVIDENCE  IN   PROBATE   AND   CONTEST. 

I-COMPETENCY    OF    WITNESSES    AND    GENERAL    PRINCIPLES    CONTROLLING 
ADMISSIBILITY    OF    EVIDENCE. 

,   ,.  .  428 

§359.     Scope  of  discussion ^^^ 

§360.     Common  law  rule  as  to  competency V"  l' '  '  V  \^'-  ' 

§361.     Modern  statutory  rules.-Communications  with  decedent  held  in-^^^ 

admissible ^    1         A'ii 

§362.     Communications  with   decedent   admissible   in   will    contest.  ..  .4^1 
§363.     Competency  of  subscribing  witnesses 


xviii  CONTENTS. 

PAGE. 

§364.  Confidential  communications  to  one  not  a  subscribing  witness.  .432 

§3C5.     Confidential   communications   to   a    subscribing   witness 433 

§366.     Evidence  of   subscribing  witnesses 434 

§367.     Record  of  evidence  given  at  probate 435 

§368.     Admissibility    of    will 436 

§369.     Definition   of   burden   of    proof 437 


II EVIDENCE     OF     EXECUTION. 

( 

'  §370.     Burden  of  proof 439 

§371.     Presumption  where  signatures  of  testator  and  subscribing  wit- 
nesses are  duly  proved - 440 

§372.     Presumption   where    subscribing-  witness    forgets    facts    of    exe- 
cution     441 

§373.     Presumption   where   subscribing  witness   is   beyond   jurisdiction 

of   court 442 

§374.     Presumption  where   subscribing  witness   denies   facts   of   execu- 
tion  443 

§375.     Presumption  from  character  of  scrivener  who  supervised  execu- 
tion  443 

§376.     Declarations  of  testator. — Res  gestae 444 

§377.     Declarations  of  testator. — Not  res  gestae 445 

§378.     Expert  evidence 445 

§379.     Evidence    negativing    execution 446 

§380.     Evidence   of   animus   testandi 447 

§381.     Questions  of  law  and  fact 448 

III EVIDENCE    OF    INCAPACITY. 

§382.     Burden   of   proof 448 

§383.     Presumption    of    sanity 451 

§384.     Presumption  of  continuance  of  mental  condition 452 

§385.     Nature  of  will  as  evidence  of  capacity 454 

§386.     Evidence  of  financial   standing  of  parties 457 

§387.  Evidence  of  relations  between  testator,  beneficiaries,  and  natural 

objects   of   bounty 458 

§388.     Opinion   evidence. — Subscribing   witnesses 459 

§389.  Opinion  evidence. — Witnesses  other  than  subscribing  witnesses. 

—Experts   461 

§300.     Opinion   evidence. — Non-experts 464 

§391.     Form  of  questions  not  calling  for  opinion 466 

§392.     Form  of  questions  calling  for  opinion 467 

§393.     Time   at   which   opinion   must   exist 469 

§394.     Time  to  which   evidence  must   relate 469 

§395.     Evidence  of  insanity  of  testator's  relatives 4/1 

§396.     Evidence  of  res  gestae  of  execution 471 

§397.     Conduct    of    testator 472 

§398.     Ability  to  answer  questions 473 

§399.     Sudden  change  of  feeling 473 


CONTENTS.  xix 

PAGE. 

§400.     Declarations  of  testator 474 

§401.     Declarations  of  legatees,   devisees,  and  contestants 476 

§402.     Adjudication  of  insanity  and  record  of  guardianship 478 

§403.     Miscellaneous  questions  of  evidence 479 

IV — EVIDENCE     OF     UNDUE     INFLUENCE. 

§404.     Evidence  of  undue  influence  largely  circumstantial 479 

§405.     Burden  of  proof 480 

§406.     Shifting  the  burden   of   proof 481 

§407.     Extent  of   burden 484 

§408.     Presumptions. — In  general 484 

§409.     Parent   and    child 485 

§410.     Husband    and    wife 487 

§411.  Wills  in  favor  of  those  living  in  improper  sexual  relations  with 

testator 488 

§412.  Subsequent  marriage  of  parties  in  unlawful  sexual   relations.  .490 

§413.     Attorney   and   client 490 

§414.     Effect  of  beneficiary's  drawing  will 491 

§415.     Effect  of  presence  of  legatees  at  execution 494 

§416.  Effect  of  business  relations  between  testator  and  beneficiaries.  .494 

§417.     Effect   of   intimacy 495 

§418.     Physician,  nurse,  etc 496 

§419.     Religious  adviser 496 

§420.     Spiritualistic  adviser 497 

§421.     General   rules  of  presumption 498 

§422.     Former   intention    of   testator 498 

§423.     Declarations   of   testator 499 

§424.     Declarations    of   beneficiaries 502 

§425.     Miscellaneous   declarations 505 

§426.     Nature  of  will  and  conduct  of  beneficiaries 506 

§427.     Facts  explanatory  of  the  nature  of  the  will 508 

§428.     Condition    of    testator 510 

§429.     Circumstances  of  execution 511 

§430.     Opinion  evidence 513 

V — EVIDENCE    OF    ALTERATION     AND    PARTIAL    SPOLIATION. 

§431.     Burden   of   proof 513 

§432.     Presumptions 514 

§433.     Evidence  contradicting  or  supporting  presumption 515 

VI — EVIDENCE    OF    LOST    AND    SPOLIATED    WILLS. 

§4.34.     Degree  of  proof  necessary. — Burden  of  proof. 515 

§435.     Witnesses ,517 

§436.     Evidence  of  existence  of  will 517 

§437.     Declarations  of  testator  as  to  existence  of  will 517 

§438.     Proof  of  execution 518 

§439.     When  presumption  of  execution  arises 518 


XX  CONTENTS. 

PAGE. 

§440.  Evidence  of  contents 518 

§441.  Declarations  of  testator  as  to  contents 520 

§442.  Evidence  of  circumstances  of  destruction 521 

§443.  Declarations  of  testator  as  to  circumstances  of  destruction.  ..  .522 

§444.  Admissions  against  interest 523 

§445.  Evidence    of    character    and    motives    of    testator     and     alleged 

spoliator 523 

VII — EVIDENCE    IN    CASES    OF    HOLOGRAPHIC    AND    NUNCUPATIVE    WILLS. 

§446.     Holographic    wills 523 

§447.     Nuncupative   wills 524 

VIII — EVIDENCE   OF   REVOCATION. 

§448.     Burden    of    proof 525 

§449.     Presumptions  where   will   is  missing 525 

§450.     Declarations   of   testator 527 

§451.     Declarations   of   legatees 529 

§452.     Declarations    of    others 529 

§453.     Revocation  by  lost  will. — Burden  of  proof 529 

§454 — Presumptions 529 

§455.     Proof  of  revoking  deed 531 


CHAPTER    XX. 

CONSTRUCTION. 

GENERAL    PRINCIPLES     UNDERLYING     CONSTRUCTION. 

§456.     General    scope    of    construction 532 

§457.     Definition 533 

§458.  Discussion  of  distinctions  and  classifications  of   construction.  .533 

§459.     Value  of  precedents 534 

§460.  Intention   to  be  deduced  from  words  employed  by  testator.  .  .  .537 

§461.     Importance  of  ascertaining  testator's  intention 537 

§462.     Intention  to  be  deduced  from  whole  will 539 

§463.     General  and  particular  intent 541 

§464.     Unjust  or  absurd   intention 542 

§465.  Testamentary  intention  presumed  to  be  in  accordance  with  law.  .543 

§466.     Presumption  against  partial  intestacy 544 

§467.     Presumptions  as  to  disinheritance 547 

§468.     Devise  by  implication 551 

§469.     Construction  of  wills  passing  both  realty  and  personalty 554 

§470.     Inconsistent    provisions 555 

§471.     General  rules  controlling  definitions 556 

§472.     Punctuation    and    grammar 557 

§473.     Modification  by  context 558 

§474.     Miscellaneous  examples  of  definitions 561 


CONTENTS.  xxi 

CHAPTER    XXI. 

DESCRIPTION  OF  PROPERTY  DISPOSED  OF  BY  WILL. 

PAGE. 

§475.  Words   passing   entire   estate 563 

§476.  Estate 564 

§477.  Property •''6-1 

§478.  Effects 565 

§479.  Surplus ^^^ 

§480.  Description  of  property  by  reference  to  its  source.  .  .•. 566 

§48L  Property  excepted  from  a  general  devise  or  bequest 567 

§482.  Construction   of  devises   of   land 567 

§483.  Mortgages '5^9 

§484.  Effect   of   reference  to   a   plat 569 

§485.  Devise  by  metes  and  bounds 5  <  0 

§486.  Unimproved    real    estate 571 

§487.  Effect  of  mistake  in  description  of  real  estate 571 

§488.  Description  of  realty  by  popular  name 574 

§489.  After-acquired  realty 576 

§490.  Gift   of   realty   at   fixed   valuation 578 

§491.  Gifts   of    rents 578 

§492.  Bequests  of  personalty — furniture 580 

§493.  Household   goods 581 

§494.  Personal  property  described  by  its  location 581 

§495.  Personalty  described  by  its  use 583 

§496.  Money .     .     .  .     : 583 

§497.  Stocks   and  bonds 584 

§498.  Notes  and  other  debts 586 

§499.  Interest  on  investments 587 

§500.  Life   insurance 587 

§501.  Release   of   obligations 588 

§502.  General    and    particular    description 589 

§503.  Inconsistent  gift  of  property 589 

§504.  Construction  affected  by  nature  of  testator's  property  interests. .  .590 

§505.  Residuary    clauses 591 

§506.  Form    of    residuary   clause 591 

§507.  What  passes  by  a  residuary  clause 592 

§508.  Effect  of  failure  of  part  of  residuary  clause 595 

§509.  Pro   rata   distribiition    of   residuum 596 

§510.  Effect  of  inconsistent  residuary  clauses 596 

CHAPTER    XXII. 

DESCRIPTION    OF    BENEFICIARIES. 

§511.     Husband  and  wife 598 

§512.     Heirs. — Primary  meaning 599 

§513.     Husband  or  wife  as  "heir" 600 


xxii  CONTENTS. 

PAGE. 

§514.     Heirs. — Extended  meaning 601 

§515.     Meaning  of  "heirs"  in  bequests  of  personalty .602 

§516.     "Heirs"    including    legatees 604 

§517.     "Heirs" — restricted    meanings — "children" 604 

§518.     "Heirs  of  the  body" 605 

§519.     "Heir"   meaning   grandchildren 606 

§520.     "Heir"    including    illegitimate    children • 606 

§521.     Next  of  kin 607 

§522.     Children. — Primary    meaning 608 

§523.     Extended  meaning  of  "children"   609 

§524.     "Children"    including   grandchildren 610 

§525.     "Children"  including  illegitimate  children 611 

§526.     Issue  and   offspring 611 

§527.     Descendants 613 

§528.     Family 614 

§529.     Relatives 616 

§530.     Brothers   and    sisters 617 

§531.     Nephews  and  nieces 617 

§532.     Cousins 617 

§533.     Representatives 619 

§534.     Servants 619 

§535.     Legatees 620 

§536.     Survivors 620 

§537.     Miscellaneous. — Occupations 621 

§538.     Misdescription    of    beneficiary. — Natural    persons 621 

§539.     Misdescription  of  beneficiary. — Corporations 622 


CHAPTER    XXIII. 

GIFTS    TO    A    CLASS. 

§540.     Definition 625 

§541.     Examples  of  gifts  to  a  class 626 

§542.     Examples  of  gifts  held  not  to  a  class 626 

§543.     Effect  of  naming  members  of  a  class 626 

§544.     Exclusion    from    a    class , 627 

§545.     Time   of    determining    the    members    of    a    class. — General    rule 

where    possession    is    immediate 628 

§546.  Where  time  for  determining  members  of  class  is  fixed  by  will.  .630 
§547.  Effect  of  postponement  of  time  of  distribution. — Gift  to  "heirs".  .632 
§548.     Effect  of  postponement  of  time  of  distri])ution. — Gift  to  others 

than    "heirs" 635 

§549.     Time    of    vesting    taken    as    tinu»    for    determining    members    of 

class 636 

§550.     Lapse  in  case  of  gift  to  a  class. — Common  law  rule 637 

§551.     Lapse  in  case  of  gift  to  a  class. — ^Modern  statutory  rule 638 


CONTENTS.  xxiii 

CHAPTER   XXIV. 

DISTRIBUTION  PER  STIRPES  AND  PER  CAPITA. 

PAGE. 

§552.     General  principles  of  distribution  in  intestacy G41 

§553.     Statutory  distribution  adopted  in  absence  of  testator's  manifest 

intention 043 

§554.     Intention    clear. — Construction    of    specific    forms    of    devise. — 

Per  capita 644 

§555.     Per  stirpes. — Substitution  specifically  directed 64G 

§556.     Per    stirpes. — "Heirs" 646 

§557.     Ambiguous  gifts 647 

§558.     Gift  to  children  of  two  or  more  persons 648 

§559.     Gift  to  pass  as  in  intestacy 649 


CHAPTER   XXY. 

NATURE  OF  ESTATE  GIVEN  BY  WILL. 

§560.     Fee  simple. — General  common  law  rule 650 

§561.     Example  of   words  passing  a  fee  simple  at  common  law 650 

§562.     Modern  statutory  rule 653 

§563.     Defeasible  fees 655 

§504.     The  Rule  in  Shelley's  Case. — Common  law 656 

§565.     The   Rule   in   Shelley's   Case. — Modern   statutes 658 

§566.     Fee    tail. — General    rule 659 

§567.     The    Rule    in    Wild's    Case 660 

§568.     Modern  statutory  I'ules. — Fee  tail  changed  to  fee  simple 661 

§569.  Modern   statutory   rules. — Fee   tail    in    first   taker. — Foe   simple 

in  remainderman 061 

§570.     Life  estates  in  realty. — Created  by  express  words 001 

§571.     Estates   for   widowhood 003 

§572.     Life  estate  created  by  gifts  over 063 

§573.     Life  estate  created  by  directions  to  support,  etc 664 

§574.     Language  restricting  a  fee  to  a  life  estate 665 

§575.     Effect  of  conferring  power  to  dispose  of  property 607 

§576.  Gift  of  life  estate  with  power  to  dispose  of  remainder. — When 

held  life  estate 669 

§577.  Gift  of  life  estate  with  power  to  dispose  of  remainder. — When 

held  fee 672 

§578.     Remainders  and  executory  devises. — Definition 673 

§579.     Remainder. — How  created 674 

§580.     Remainder    after    fee-simple 076 

§581.  Remainder  after  life  estate  with   power  of  disposition  of  fee.  .676 

§582.     Remainder  over  on  condition  broken 677 

§583.     Validity  of  remainder 677 


xxiv  CONTENTS. 

PAGE. 

§584.     Waiver  of  remainder •  678 

§585.     What  property  passes  in  remainder 678 

§586.     Power  of   life  tenant  to  bind  remaindermen 678 

§587.     Distinctions  between  interests  in  severalty,  interests  in  common 

and   joint    interests 6/8 

§588.     Words  creating  an  estate  in  common,  as  distinguished  from  an 

estate  in  severalty ' 6/9 

§589.     Distinction  between  joint   tenancies   and  estates   ia   common. — 

Common   law  rule 680 

§590.     Modern  statutory  rule 681 

§591.     Definite   and   indefinite  failure  of   issue. — Distinction   and   defi- 
nition  681 

§592.     Construction  of  "dying  without   issue." — Gifts  of   personalty.  .682 
§593.     Construction   of   "dying   without   issue." — Devises   of   realty   at 

common   law,    "o- 

§594.     Modern  rule 683 

§595.     Personal     property. — Absolute   ownership. — Rule     in      Shelley's 

case 684 

§596.     Life  interests  in  personalty. — Possibility  of  creation 686 

§597.     Life  interests  in  personalty. — How  created 687 

§598.     Life  interests  in  personalty. — Protection  of  remainderman 689 


CHAPTER   XXAT:. 

GIFTS    OF    INCOME,  AND    ANNUITIES. 

§599.  Gifts  of  income  in  general 691 

§600.  For  what  time  income  is  payable 692 

§601.  Time  from  which   income  is  to  be  estimated 693 

§602.  Rules  for  ascertaining  income 694 

§603.  Gift  of  income  charged  with  support  of  others 698 

§604.  Beneficiaries 699 

§605.  Whether  income  or  support  passes 700 

§606.  Apportionment  of  income  at  death  of  beneficiary 702 

§607.  Annuities  in  general '02 

§608.  Duration   of   annuities '703 

§609.  Apportionment  of  annuities 704 


CHAPTER   XKYH. 

TESTAMENTARY   TRUSTS   OTHER   THAN   CHARITABLE. 

§610.     Elements   of   a   trust 705 

§61 1.     Precatory  words  not  creating  trust 708 

§612.     Precatory  words  creating  trust 710 

§613     Words  showing  the  motive  for  the  gift 711 


CONTENTS.  XXV 

PAGE. 

§614.     Words  creating  an  express  trust 713 

§615.     Dry  trusts "15 

§616.     Effect  of  failure  of  trusts 710 

§617.     Resulting  trusts "l*" 

§618.     Duration  of  trusts 717 

§619.     Discretionary  power  of  trustees 719 

§620.     Parol    trusts "21 

§621.     Validity  of  trusts 722 

§622.     Extent  of  interest  of  beneficiary 72:5 

§623.     Accumulations '24 

§624.     Separate  estates  of  married  women 724 


CHAPTER   XXVIIl. 

THE  RULE  AGAINST  PERPETUITIES  AND  CHARITABLE  TRUSTS. 

§625.     Perpetuities. — General  discussion 727 

§626.     Perpetuities. — Definition  and  application 728 

§627.     Origin   of   rule 729 

§628.     Original  rule  and  statutory  modifications 730 

§629.     Effect  of  violation  of  rule. — Examples 731 

§630.     Partial  violation  of  rule 732 

§631.  Examples  of  gifts  not  within  the  rule  against  perpetuities.  ..  .733 

§632.     Examples  of  gifts  within  the  rule  against  perpetuities 735 

§633.     Statutory  modifications  of  the  rule  against  perpetuities 737 

§634.     Restraints  on  alienation 738 

§635.  Extension  of  rule  against  alienation  to  prevent  perpetuities.  ..  .738 

§636.     Illustrations  of  violations  of  statutory  rule 740 

§637.     Cases  not  within  the  statutory  rule 742 

§638.     Accumulations "43 

§639.     Charitable   devises. — Definition 745 

§640.  Rule  against  perpetuities  as  applied  to  gifts  to  charitable  uses. — 

Time  of  vesting '46 

§641.  Rule  against  perpetuities  as  applied  to  gifts  to  charitable  uses. — 

Restraint  on  alienation 747 

§642.     Accumulations  for  charitable  purposes 748 

§643.     Who  may  be  beneficiaries  of  a  charitable  devise 748 

§644.     Charitable  devises  to  public  corporations 752 

§645.     What  are   charitable   purposes. — Education 753 

§646.     Public    libraries 754 

§647.     Aid  of  poor  and  destitute 755 

§648.     Hospitals   and   asylums 756 

§649.     Support   of   religion 757 

§650.     Masses 758 

§651.     Cemeteries 75S 

§652.     Parks 759 

§653.     Miscellaneous  charitable  uses 759 

§654.     Uses  not  charitable 760 

§655.     The  doctrine  of  cy  pres 761 


xxvi  CONTENTS. 

CHAPTER    XXIX 

VESTED  AND  CONTINGENT  INTERESTS. 

PAGE. 

§656.     Vested  and  contingent  interests. — Definitions 766 

§657.     Importance   of    distinction    between    vested    and    contingent    in- 
terests   769 

§658.     General  rule  of  construction  as  between  vested  and  contingent 

interests   769 

§659.     Interests  in  realty. — Effect  of  postponement  of  possession 770 

§660.     Effect  of  power  of  sale 773 

§661.     Vested  remainders  opening  to  let  in  after-born  remaindermen.  .773 

§662.     Vested  defeasible  remainders 774 

§663.     When  contingent  interests  become  vested 776 

§664.     Contingent  remainders 779 

§665.     Contingencies  of  the  person 780 

§666.     Contingent  legacies 781 

§667.     Vested  and  contingent  legacies. — General  rule  of  construction.  .  .782 
§668.     Effect   of   postponing   time   of   payment   to   create   intermediate 

interests 783 

§669.     Effect  of  postponing  time  of  payment  where  no  intermediate  in- 
terest exists 784 

§670.     When  contingent  legacies  become  vested 787 

§671.     Destruction    of    contingent    legacy 788 


CHAPTER   XXX. 

CONDITIONS. 

§672.     Classes  of  conditions 789 

§673.     Condition  distinguished  from  motive 789 

§674.     Construction  of  conditions  in  general 791 

§675.     Effect  of  failure  of  condition 793 

§676.     Conditions  concerning  death  of  devisee 794 

§677.     Conditions  as  to  birth  of  issue 800 

§678.     Conditions  as  to  support  for  services 801 

§679.     Conditions  as  to  reformation  and  conduct  of  beneficiary 802 

§680.     Conditions  as  to  presenting  claims  against  testator's  estate 803 

§681.     Conditions   in   restraint  of  marriage 803 

§682.     Conditions  as  to  religious  belief 806 

§683.     Conditions  against  contesting  will 807 

§684.     Conditions  repugnant  to  the  nature  of  the  estate  devised 808 

§685.     Conditions  against  bankruptcy. — Spendthrift  trusts 813 

§686.     Conditions  as  to  use  of  property 817 

§687.     Implied  condition  against  murder  of  testator  by  devisee 817 

§688.     Miscellaneous  conditions 819 


CONTENTS.  xxvii 

CHAPTER   XXXI. 

POWERS. 

PAGE. 

§G89.     Definition. — Creation   of   power   of   sale 821 

§(J90.     How  a  power  to  devise  may  l>e  created 824 

§691.     Construction  of  powers 824 

^(■(92.     Who  may  exercise  power.  .'. !^30 

§693.     Powers  to  be  exercised  with  the  consent  of  designated  persons 83.3 

§694.     Effect  of  failure  to  exercise  power 833 

§695.     Power  of  sale  given  to  life  tenants 834 

§696.     Exercise  of  power  of  sale  by  life  tenants 836 

§697.     Rights  of  creditors  of  the  donee  of  a  power 837 

§698.     Necessity  of  reference  to  power 838 

CHAPTER    XXXII. 

CONVERSION. 

§699.  Conversion   in   general 841 

§700.  Power  of  sale  without  discretion 842 

§701.  Power  of  sale  with  limited  discretion 842 

§702.  Discretionary  power  of  sale 842 

§703.  Implied    power    of    sale 843 

§704.  What  sales  do  not  effect  a  conversion 844 

§  705.  Double  conversion 844 

§706.  Conversion  of  personalty  into  realty 845 

§707.  Effect  of  failure  of  purpose  upon  conversion.     Re-conversion.  .  .  .845 

§708.  Effect  of  conversion 846 

§709.  Time  at  which  conversion  takes  effect 847 


CHAPTER   XXXIII. 

ELECTION. 

§710.     Election  in  general ^"^^ 

§711.     Election   between   dower  and   devise  under  the  will,  where  tes- 
tator intends  devise  to  be  in  lieu  of  dower 850 

§712.     Common  law  rule  that  devise  was  presumed  to  be  in  addition  to 

dower  • ^^^ 

§713.     Statutory  rule  that  devise  is  presumed  to  be  in  lieu  of  dower 8.'i2 

§714.     Election  between  life  insurance  and  gifts  under  the  will 854 

§715.     Election  between  community  rights  and  gifts  by  will 854 

§716.     Election  between  homestead  rights  and  gifts  by  will 855 

8717.     Election  between  general  property  rights  and  devises  by  will 856 

§718.     Election  to  take  property  in  specie  free  from  power  of  sale.  .  .  .858 
§719.     Who   may   elect ^^^ 


xxviii  CONTENTS. 

PAGE. 

§720.     How  election  is  effected  at  common  law 860 

§721.     Effect  of  qualifying  as  executor 861 

§722.     Taking    part    in    litigation r..862 

§723.     Election  by  taking  possession  of  property 862 

§724.     Receipt  of  money  as  election 864 

§725.     Effect  of  election. — Where  election  not  necessary 864 

§726.     Where  election  necessary 865 

§727.  Full  knowledge  of  rights  necessary  in  common  law  election. — 

Right  to  revoke  election 866 

§728.     Statutory  election. — When  necessary 867 

§729.     At  what  time  statutory  election  must  be  made 868 

§730.     What  is  "filing"  under  statutes 869 

§731.     Can  a  written  election  be  revoked? 870 

§732.     Estoppel  to  deny  written  election 871 

§733.     Effect  of  election  upon  rights  as  heir 871 

§734.     Effect  of  election  upon  rights  to  allowance 872 

§735.  Effect  of  accepting  a  provision  in  lieu  of  dower  upon  the  right 

to  a  distributive  share  in  personalty 872 

§736.  Effect  of  election  upon  rights  of  dower  in  intestate  property.  .  .  .873 

§737.  Effect  of  election  upon  estates  dependent  upon  interest  given  by 

will 873 


CHAPTER   XXXIY. 

LAPSED  AND  VOID  LEGACIES  AND  DEVISES. 

§738.  Lapsed  legacies   and  devises   in   general 877 

§739.  Lapse  at  common  law  by  death  of  beneficiary 877 

§740.  Lapse  at  common  law  by  dissolution  of  corporation 878 

§741.  Lapse  prevented  at  common  law  by  testator's  intention 878 

§742.  Effect   of   modern   statutes   upon    the   common    law   doctrine   of 

lapse 879 

§743.  "Relations"  or  "descendants"  under  the  statute 881 

§744.  Disposition  of  lapsed  legacies  and  devises 882 

§745.  Void   legacies   and   devises   in  general 884 

§746.  Devolution  of  void  legacies  and  devises 885 

CHAPTER    XXXV. 

CHARGES  OF  DEBTS  AND  LEGACIES  UPON  SPECIFIC  PROPERTY. 

§747.  General  rule. — Legacies  payable  out  of  personalty 887 

§748.  Charging  legacies  upon  realty — in  general 887 

§749.  Words   which   charge   legacies   upon    realty 888 

§750.  Implied  charge  of  legacies   upon   realty 888 

§751.  Direction  for  support  and  maintenance  as  a  charge 890 

§752.  Direction  that  devisee  pay  money  to  another  as  a  charge 892 


CONTENTS.  xxix 

PAGE. 

§753.     Valuation  of  property  devised 893 

§754.     Personal   liability   of   devisee 894 

§755.     Effect    of    residuary    clause    blending   realty    and    personalty. — 

Charge   of  debts  and   legacies   on   realty 895 

§756.     Effect  of  blending  realty  and  personalty. — Exoneration  of  per- 
sonalty   897 

§757.     What  words  show  testator's  intention  to  blend  realty  and  per- 
sonalty  898 

§758.     Charging  legacies  upon  realty  specifieally  devised 898 

§759.     Charging  legacies  upon  personalty  specifically  bequeathed 900 

§760,     Enforcement  of  lien  of  legacy 901 

§761.     Enforcing  personal  liability  of  devisee 902 

§762.     General  rules  as  to  charge  of  testator's  debts 903 

§763.     Exoneration   of  personalty   from   debts 905 

§764.     What  words  charge  debts  upon  realty 906 

§765.     Payment  of  liens  out   of  personalty 908 

Where    liens    are    not    payable    out    of    personalty. — Gifts    cum 
onere 909 


CHAPTER    XXXYI. 

CLASSES  OF  DEVISES  AND  LEGACIES. 

§767.  Classes  of  devises  and  legacies. — General  legacies 911 

§768.  Specific  legacies 912 

§769.  Gifts  of  stocks,  bonds  and  other  securities 914 

§770.  Demonstrative   legacies 915 

CHAPTER   XXXVII. 

ABATEMENT,  ADEMPTION,  ADVANCEMENTS  AND  CONTRIBUTION. 

I.— ABATEMENT. 

§771.  Where  testator  directs  order  of  abatement 917 

§772.  Where  no  direction  in  will. — Residuary  legacies 919 

§773.  General  legacies 920 

§774.  Demonstrative  legacies _ 921 

§775.  Specific  legacies.  .* 923 

§776.  Legacies  given  upon  valuable  consideration 924 

§777.  Abatement  of  devises 925 

§778.  Legacies  given  under  a  power 926 

II. — ADEMFnON. 

§779.  Ademption. — Definition 026 

§780.  Ademption  by  change  of  ownership 927 

§781.  What  changes  do  not  affect  ademption 928 

§782.  Ademption   by   compensation. — Realty 929 


XXX 


CONTENTS. 


PAGE. 

§783.     Ademption    by    compensation. — Personalty. — Where    testator    in 

loco  parentis •  930 

§784.     Where  testator  not  in  loco  parentis 932 

§785.     By  what  gifts  ademption  is  affected 932 

III. ADVANCEMENTS. 

§78G.  Advancements. — General    rule 933 

§787.  Advancements  provided  for  by  testator 933 

§788.  How  advances  are  to  be  estimated 935 

§789.  Legacies  from  which  advancements  may  be  deducted 937 

§790.  Where    advances    exceed    legacy 938 

IV. — CONTRIBUTION. 

§791.     Property  taken  for  testator's  debts  in  order  of  priority 938 

§792.     Property  taken  for  testator's  debts  out  of  order  of  priority.  .  .  .939 
§793.     Failure  of  title 940 


CHAPTER    XXXATII. 

SATISFACTION  AND  CUMULATIVE  AND  SUBSTITUTIONAL 
LEGACIES. 

§794.  By  gift   to   debtor 942 

§795.  By  gift  to  creditor. — Where  satisfaction  presumed 943 

§796.  By  gift  to  creditor. — Where  no  satisfaction  presumed 943 

§797.  Where  testator   directs   satisfaction 944 

II. CUMULATIVE    AND   SUBSTITUTIONAL   LEGACIES. 

§798.     Cdmulative  and  substitutional  legacies. — Where  testator's  inten- 
tion  is   expressed 945 

§799.     Presumption  where  testator's  intention  is  not  expressed 946 

§800.     Incidents  of  substitutional  and  cumulative  legacies 949 


CHAPTER   XXXIX. 

RIGHTS  OF  DEVISEES  AND  LEGATEES   TO  THE   ENJOYMENT   OF 
PROPERTY  GIVEN  BY  WILL. 

§80L  Payment  of  legacies 951 

§802.  Where  time  is  fixed  by  will 951 

§803.  Rule  where  the  will  does  not  fix  the  time  of  payment 954 

§804.  Interest  upon  legacies 956 

§805.  Right  of  devisees  to  possession  of  realty 958 


XXXI 


CONTENTS. 

CHAPTER   XL. 

SUITS  TO  CONSTRUE  WILLS. 

PAGE. 

§806.     When  suits  to  construe  will  lie ■  • 

§807.     Jurisdiction  of  courts  in  actions  to  construe  a  will J|J4 

§808.     Parties  to  suits  to  construe  wills 

§809.     Suit  for  construction  not  contest  or  reformation ^^o 

§810.     Pleadings "^^l 

§811.     Notice ggy 

§812.     Decree gg^ 

§813.     Costs   and   attorney   fees ^^^ 

§814.     Estoppel g^^ 

§815.     Error 


CHAPTER   XLI. 

EVIDENCE  IN  AID  OF  CONSTRUCTION. 

§816.  General  principles  controlling  admissibility  of  evidence  in  con-^_^ 

struction „y  „ 

§817      Evidence  admissible  to  show  surrounding  circumstances JM 

§818      Evidence  necessary  where  there  is  no   ambiguity J^* 

§819.     Admissibility  of  evidence  where  description  is  ambiguous 975 

§820.  Admissibility  of  evidence  where  description  is  not  ambiguous.  .  .  .982 

§821.  Admissibility  of  evidence  where  description  is  insufficient.      -  •  .986 

§822.  Rule  where  admissible  extrinsic  evidence  does  not  explain  will.  .  .987 

§823.     Patent   and   latent   ambiguities •• 


LAW  OF  WILLS. 


CHAPTER   I. 

INTRODUCTION. 

§1.     The  place  of  the  will  at  modem  law. 

The  common  law  has,  in  its  development,  built  up  its  doc- 
trines upon  a  framework  composed  in  part  largely  of  common 
law  pleading  and  in  part  of  such  a  grouping  of  subjects  as 
practical  convenience  suggested.  This  method  produced  an 
outline  of  law  whose  great  defect  was  that  it  contained  many 
cross  classifications ;  that  is,  that  often  the  bases  of  a  classifica- 
tion were  changed  during  the  classification  itself,  and  that  ac- 
cordingly one  topic  which  is  in  its  nature  essentially  a  unit  is 
treated  under  several  headings,  while  other  topics  are  excluded 
from  such  classification  entirely,  and  discussed  incidentally 
as  outside  of  the  formal  classification  that  should  have  em- 
braced them.  This  defect  of  the  common  law  has  often  been 
observed  and  commented  on  unfavorably  by  philosophical 
writers  on  jurisprudence.  It  is,  however,  a  defect  which  is  in- 
evitable in  a  system  which  has  gradually  developed  by  a  nat- 
ural process  of  evolution  into  a  system  which  is  always  fol- 
lowing an  advancing  civilizatioji  in  an  attempt  to  supply  the 
needs  and  wants  of  the  people,  by  establishing  settled  rules 
for  controlling  and  directing  the  transactions  of  daily  lifc.^ 

1  The  only  systems  ever  suggested  the  theoretical  jurist  as  a  substitute 

which  have  been  constructed  in  an  for    existing    systems.      They    have 

attempt    to    avoid    this    defect   have  been    quite   exact    in    their    outlines 

been  those  curiosities  in  the  history  but  they  never  have  worked  in  prac- 

of    jurisprudence,    the    codes,    which  tice. 
have   occasionally   been    drafted   by 


2  LAW     OF    WILLS. 

The  law  of  Wills  has  always  been  regarded  at  common  law 
as  a  separate  topic,  to  be  considered  apart  from,  other  branches 
of  the  law.  This  separate  treatment  is  liable  to  the  objection 
that  many  of  the  topics  are  necessarily  treated  of  in  the  law  of 
Real  and  Personal  Property,  the  law  of  Procedure,  the  law  of 
Persons  and  the  like.  This  objection,  •  however,  is  as  well 
taken  to  any  other  title  of  the  common  law  as  to  this  one.  It 
is  a  defect  which  can  never  be  remedied  nntil  the  whole  mass 
of  the  common  law  is  analyzed,  reduced  to  its  elements,  and 
reconstructed  in  the  form  of  a  written  code  which  shall  have 
the  weight  of  legislative  sanction  as  well  as  the  advantage  of 
a  philosophical  and  orderly  arrangement  to  compensate  for 
the  partial  break  in  the  continuity  of  the  development  of  our 
law. 

The  law  of  Wills  will  be  discussed  in  this  volume  as  it  is  ac- 
tually treated  by  the  courts  today,  including  what  they  in- 
clude and  omitting  what  they  omit. 

§2.     Definitions. 

Will. — The  word  "will,"  in  the  popular  meaning  of  the 
term,  is  a  dispositon,  made  by  a  competent  testator  in  the 
form  prescribed  by  law,  of  property  over  which  he  has  legal 
power  of  disposition,  which  disposition  is  of  such  nature  as  to 
take  effect  at  the  death  of  the  testator.^ 

In  its  technical  and  historical  sense,  however,  a  "will"  is  an 
instrument  of  the  type  described  which  disposes  of  realty  only.^ 

Testament. — An  instrument  which  disj)oses  of  personalty 
only,  is  called  a  "testament" ;  and  an  instrument  disposing  of 
both  realty  and  personalty  is  known  as  a  "will  and  testament." 

2  Bouvicr's        Law        Dictionary,  3  Bacon's     Abridg.     "Wills,"     A; 

"Will;"   2   Bl.    Comm.   499;     Swin-  Coke  on  Littleton,  Lib,  IL  Ch.   10, 

burne  on  Wills,  Pt.  1,  Sec.  2;    Ba-  See.   167,  note. 

con's    Abridg.    "Wills,"   A;     Colton  "But  in  law  most  commonly  ul- 

V.  Colton,  127  U.  S.  300.  tima   voluntas   in   script  is    is    used 

A   will    may    contain    other    pro-  where   lands   or   tenements   are   de- 
visions    than    that    stated    in    the  vised,    and    testamentum    where    it 
text,  and  may  appoint  an  executor  concerneth    chattels." 
or    guardian    without    making    any 
provision    for   a    disposition    of   tes- 
tator's   property.    See    Sec.    45. 


LAW    OF    WILLS.  «' 

The  popular  meaning  of  "will"  has  so  far  encroached  upon 
the  technical  meaning,  that  "will"  is  used  indiscriniinately 
of  instruments  passing  realty  or  personalty  or  both.  "Testa- 
ment," however,  is  almost  never  used  of  an  instrument  passing 

realty  only. 

"Testator."— The  word  "testator"  is  very  commonly  used  of 
the  person  making  either  a  will  or  a  testament. 

"Devisor:' — "Devisor"  is,  according  to  derivation,  the  correct 
term  for  one  who  makes  a  will,  but,  while  used,  is  not  com- 
mon.^ 

''Devisee,''  on  the  other  hand,  is  the  word  regularly  used  to 
denote  one  to  whom  realty  passes  by  will. 

''Legatee,"  is  properly  used  to  denote  one  to  whom  personalty 

passes  by  will.^ 

''Leo-atee"    and    "devisee"    are   frequently   interchanged    in 

popular  usage,  however. 

"Devise''  and  "hequeath."—Oi  the  verbs  used  to  denote  the 
act  of  making  a  will,  "devise"  is  properly  used  of  realty,  and 
"bequeath"  of  personalty. 

''Devise." — Of  the  nouns  used  to  name  the  various  forms  of 
gift,  "devise"  is  used  of  a  gift  of  realty. 

"Legacy." — "Legacy"  is  used  as  a  gift  of  a  sum  of  money. 

"Bequest." — "Bequest"  is  used  of  a  gift  of  personalty  iti 

general.^ 

None  of  these  words  have  so  fixed  a  legal  meaning,  however, 
that  a  gift  will  fail  because  testator  does  not  use  the  words  de- 
scriptive of  the  gift  or  the  act  of  giving  with  technical  accuracy. 

A  "devise"  is  often  miscalled  a  "bequest,""^  or  "bequest"  is 
often  used  to  include  both  realty  and  personalty,^  or  is  used  of 
a  gift  of  money  alone.® 

So  the  verb  "devise"  is  often  used  to  refer  to  personalty 

alone.^^ 

4  Coke  on  Littleton,  Lib.  II,  Ch.  Allen  v.  White,  97  ]\rass.^504; 
10    Sec.   17.  Lamb  v.  Lamb,  131  N.  Y.  227. 

5  Neville  v.  Dulaney,  89  Va.  842.  » White     v.     Mass.     Institute     of 

6  Keating    v.    McAdoo,     180    Pa.  Technology,    171    Mass.    84. 

g^.^  5  10  In   re  White,    125   N.   Y.   544; 

1 1n  re  White,  125  N.  Y.  544.  Clark  v.  Clark,  46  S.  Car.  230. 

8  Evans    v.    Price,    118    111.    593; 


LAW     OF     WILLS. 


CHAPTER    II. 

HISTORY  OF  THE  LAW  OF  WILLS  AND  TESTAMENTS. 
§3.     Wills  in  primitive  nations. 

The  idea  of  a  will  seems  to  be  non-existent  among  primitive 
communities  of  a  rude  type.  Among  such  peoples,  rights  of 
private  property  in  land  do  not  exist,  and  personal  property  is 
of  little  value.  Furthermore,  the  funeral  rites  in  many  of  these 
primitive  nations  are  occasions  upon  which  practically  all 
the  property  of  the  deceased  is  destroyed,  to  do  honor  to  his 
spirit  or  to  accompany  him  to  the  next  world.  In  such  a  state 
of  society  there  are  really  no  property  rights  upon  which  a  will 
can  operate,  and  the  will  therefore  has  really  no  place  in  such 
a  system. 

§4.     Effect  of  development  of  property  rights  upon  the  law  of 
wills. 

Where  property  rights  become  firmly  established  and  of 
recognized  importance  in  a  more  advanced  state  of  society, 
custom  indicates  certain  persons  as  the  natural  beneficiaries 
of  so  much  of  the  decedent's  personal  property  as  is  allowed 
to  exist  after  his  death. 

These  persons  are  generally  those  whom  the  sentiment  of  the 
community  indicates  as  the  most  natural  successors  of  the  de- 
cedent. They  are  not  necessarily  the  children  of  the  decedent. 
A  detailed  discussion  of  this  question  belongs  to  sociology 
rather  than  law.  As  an  example,  it  will  be  sufficient  to  say 
that  where   descent   is   traced    through   the   female   line,    the 


LAW     OF     WILLS.  0 

children  of  the  decedent's  sister  may  be  nearer  both  in  law 
and  in  affection  than  his  o\\ni.^ 

Interests  in  realty  remain  for  many  ages  ontside  the  law 
of  property  entirely.  Rights  in  realty  belong  to  the  tribe  or 
clan  as  a  unit.  There  is  no  individual  interest  of  any  sort 
recognized  by  the  law.  Progress  in  this  direction  is  much 
slower  than  in  the  law  of  personalty.  Finally,  however,  in- 
dividual rights  of  greater  or  less  extent  are  recognized  in  the 
dwelling  house  and  surrounding  yard,  and  ultimately  in 
ploughland.^ 

As  these  interests  become  recognized  by  law,  rules  as  to  their 
descent,  and  the  possibility  of  a  change  in  this  course  of  descent 
at  the  will  of  the  owner,  gradually  grow  up. 

§5.     Causes  of  the  growing  importance  of  the  will. — Examples. 

The  will  does  not  become  of  great  practical  importance  until, 
by  the  development  of  the  law  of  succession  in  different  direc- 
tions from  the  prompting  of  natural  feeling,  the  law's  disposi- 
tion of  the  property  of  the  decedent  becomes  sharply  at  variance 
with  his  real  wishes.  Thus,  Sir  Henry  Maine  suggests  that 
the  desire  of  the  Roman  to  leave  a  will  was  due  to  the  fact  that 
if  he  died  intestate  his  estate  was  divided  among  his  unemanci- 
pated  children,  or  failing  them,  among  more  remote  relatives, 
to  the  exclusion  of  those  children,  often  the  most  dearly  loved, 
whom  he  had  emancijDated.  In  England  the  fixed  rules  of  de- 
scent often  gave  the  property  to  more  remote  heirs  of  the  male 
line  to  the  exclusion  of  much  nearer  relatives  of  the  female 
line,  and  made  inheritance  from  a  half-brother  impossible. 
Such  a  state  of  the  law  suggests  that  property  rights  have 
become  settled  under  a  systenf  of  law  of  such  antiquity  that  it 
no  longer  coincides  with  the  natural  feeling  of  the  times. 

1  Such    seems   to   have   been    the  existing   English   villages,    it   seems 

rule    among    the    ancient    Germans.  probable   tliat   the   Germanic   tribes 

Tacitus    Germania,    C.    20;    Pollock  who   invaded   England   did  not   rec- 

aiid  Maitland's  History  of  Engiisli  Law,  ognize  individual   ownership  of  any 

II.  238.  land  except  the  dwelling-house  and 

rrom    the    organization    of    the  the    ploughland.       Land     used    for 

feudal    manor,    which    in    some    re-  pasture    and    woodland    belonged    to 

spects  was  a  petrefaction  of  the  pre-  the   village,   not   to    the    individual. 


6  LAW     OF     WILLS, 

§6.     TJse  of  the  word  "will"  in  Greek  and  Roman  law. 

In  such  civilizations  as  those  of  Greece  and  Rome^  wills  were 
recognized  by  the  law.  The  name  "will"  must  not  mislead, 
however.  The  will  did  not  possess  the  same  elements  as  ours, 
nor  was  it  identical  in  those  two  systems  of  law.  The  Greek 
will,  in  many  cases,  at  least,  seems  to  have  required  the  con- 
sent of  the  heirs  for  its  validity.  The  primitive  Eoman  will 
was  originally  a  public,  irrevocable  act.  They  both  resembled 
the  English  will  in  disposing  of  property  after  the  death  of 
the  decedent  in  a  manner  different  from  that  indicated  by  the 
law  of  intestate  succession,  but  differed  from  it  in  many  of  the 
characteristic  qualites  of  the  Avill  as  it  exists  at  English  and 
American  law.  Without  a  careful  study  of  the  different  sys- 
tems of  law,  it  is  not  safe  to  claim  that  the  resemblance  between 
the  different  types  of  will  was  any  greater  than  that  each 
country  afforded  some  means,  of  greater  or  less  extent,  of  chang- 
ing the  disposition  of  property  after  the  death  of  the  owner 
from  that  prescribed  by  law  in  case  of  intestacy. 

§7.     Effect  of  Roman  law  of  wills  on  the  English  law. 

Long  before  the  time  that  the  Eoman  law  had  assumed  the 
form  in  which  we  are  most  familiar  with  it,  that  of  Justinian's 
Code,  the  will  was  recognized  by  their  law  and  was  in  most  re- 
spects strikingly  like  the  will  which  is  recognized  by  modern 
American  and  English  law. 

It  had  substantially  the  inherent  elements  which  are  neces- 
sary to  constitute  a  valid  will  under  modern  systems  of  law, 
though  the  extrinsic  formalities  were  different  from  ours. 

This  coincidence  is  in  part  due  simply  to  the  necessary  and 
inevitable  similarities  which  always  occur  when  two  nations  of 
substantially  similar  civilizations,  with  similar  rights  of  prop- 
erty recognized  by  law,  deal  with  similar  subject-matters. 
In  such  cases  resemblance  does  not  always  arise  from  imita- 
tion. On  the  other  hand,  there  is  no  doubt  that  the  ecclesiastical 
law  in  England  borrowed  its  law  on  the  subject  of  testaments 
very  freely  and  very  literally  from  the  Roman  law. 

To  which  of  these  two  causes   the   similaritv  between   the 


LAW     OF     WILLS. 


English  and  the  Roman  law  of  wills  is  due,  is  a  question  that 
can  not  now  be  answered  with  any  degree  of  accuracy,  and  can 
not  be  discussed  in  the  limits  of  this  subject.  The  trend  of 
modern  research  is  to  recognize  the  Roman  law,  probably  of 
earlier  date  and  form  than  Justinian's  Code,  as  a  very  import- 
ant factor  in  pre-Norman  English  law.^ 

§8.     English  will  in  pre-Norman  period. 

In  England,  prior  to  the  ISTorman  Conquest,  during  the  so- 
called  Anglo-Saxon  period,  the  will  passing  both  real  and  per- 
sonal property  was  not  unknown.  The  present  state  of  our 
knowledge  of  legal  history  does  not  warrant  us  in  saying  more 
than  that  among  the  great  it  seems  to  have  been  the  general 
rule  to  leave  a  will."* 

Cnut's  Laws,  II,  YO,  seem  to  assume  that  a  man  who  died 
without  making  a  will  did  so,  not  purposely,  but  through  neg- 
ligence or  because  of  sudden  death.  It  is  probable  that  the  le- 
ffalitv  of  the  will  was  well  established,  whatever  may  have  been 
the  custom  among  the  middle  or  lower  classes  as  to  availing 
themselves  of  the  privilege.^ 

It  has  been  suggested,  and  is  quite  possible,  that  this  Anglo- 
Saxon  will  was  not  revocable. 

"We  can  not  think  that  an  instrument  bearing  a  truly  testa- 
mentary character  had  obtained  a  well  recogiiized  place  in  the 
Anglo-Saxon  folk-law.  With  hardly  an  exception  these  wills 
are  the  wills  of  very  great  people,  kings,  queens,  king's  sons, 
bishops,  earldormen,  king's  thegns.  In  the  second  place,  it  is 
plain  that  in  many  cases  the  king's  consent  must  be  obtained 

3  The    Germanic    tribes    towards  imperfect  knowledge   of   early  Eng- 

the    south    were    greatly    influenced  lish  law.     Internal  evidence,  as  far 

by    Roman    law,    and    so    were    the  as   it  goes,   tends   very   strongly  to 

Celts  of  Britain.     Exactly  to  what  show  that  the   influence  was   much 

extent    the    Germanic    tribes    which  earlier  and  much  greater  than  would 

invaded   Britain  were  influenced  by  be  inferred  from  the  earlier  writers 

Roman  law  through  either  of  these  upon  the  liistory  of  English  law. 
sources ,     or   through    the   influence  *  Pollock  and  Maitland's  History 

of    the   Roman    law    in    force   upon  of   English   Law,   Vol.   II,   318. 
the    continent,    is    a    question    that  ^  Pollock  and  Maitland's  History 

can  not  be  answered  in  our  present  of  English  Law,  Vol.  2,  p.  320. 


8  LAW     OF    WILLS. 

if  the  will  is  to  be  valid,  if  the  [will]  is  to  'stand.'  That  consent 
is  purchased  by  a  handsome  heriot.  Often  enough  the  [will] 
takes  the  form  of  a  supplicatory  letter  addressed  to  the  king. 
In  the  third  place,  an  appeal  is  made  to  ecclesiastical  sanctions : 
a  bishop  set  his  cross  to  the  will ;  the  torments  of  hell  are  de- 
nounced against  those  who  infringe  it.  Then  again,  even  in 
the  eleventh  century,  it  seems  to  be  quite  common  that  the 
[will]  should  be  executed  in  duplicate  or  triplicate,  and  that 
one  copy  of  it  should  be  at  once  handed  over  to  the  monastery 
which  is  the  principal  donee,  and  this  may  make  us  doubt 
whether  it  is  a  revocable  instrument."^ 

§9.     Divergence  of  history  of  will  and  testament  under  feudal- 
ism. 

The  Xorman  Conquest  (lOGC  A.  D.)  hastened  a  set  of 
changes  in  the  social  system  of  England,  the  result  of  which  is 
knoA\Ti  conveniently  by  the  name  of  feudalism.  The  old  idea 
of  the  feudal  system,  as  a  clear,  definite,  and  complete  set  of 
institutions,  which  existed  all  over  Western  Europe  for  six 
centuries,  has  been  too  often  refuted  to  need  discussion  here. 
That  there  were  certain  peculiarities  of  organization  in  West- 
tern  Europe  during  those  centuries  is  admitted  by  all.  The 
error  lies  in  assuming  that  because  this  organization  is  now 
known  as  the  feudal  system,  it  must  have  been  the  same  in 
every  country  and  in  every  century. 

The  feudal  system  paid  great  attention  to  land  and  the 
consequences  arising  out  of  its  ownership,  and  but  little  atten- 
tion to  personal  property.  As  a  result  we  must  distinguish 
between  the  history  of  the  will  which  passes  real  property  and 
that  of  the  testament  which  passes  personal  property;  and  the 
distinction  here  begun  will  be  found  to  run  into  the  substantive 
law  of  wills  as  well  as  the  history  of  the  law. 

Still,  the  name  feudal  system  is  a  most  convenient  general 
term  under  which  to  group  the  different  systems  of  social  or- 
ganization which  in  so  many  various  and  varying  forms  was 
found  in  Western  Europe  from  in  the  ninth  and  tenth  centuries 

crollock   and   Maitland's   History  of  English  Law,  Vol.  2,  pp.  318,  319. 


LAW     OF     WILLS. 


9 


out  of  earlier  beginnings  on  down  to  the  fifteenth  and  sixteenth 
centuries.^ 

§10.     The  will  at  common  law  abolished  by  feudalism. 

The  theories  of  land  ownership  which  grew  np  under  the 
feudal  system  ultimately  proved  fatal  to  the  validity  of  the  will 
Mdiereby  real  property  was  devised.  The  reasons  which  the 
courts  gave  for  finally  holding  that  real  proj^erty  could  not 
pass  by  will  may  roughly  be  given  as  follows : 

First. — The  underlying  theory  of  land  ownership  was  that 
land  was  a  trust  fund  for  raising  a  military  force.  The  ten- 
ant of  the  higher  classes  was  the  captain  or  the  soldier ;  the 
tenant  of  the  lower  classes  was  to  support  the  soldiers  by  his 
agriculture.  The  natural  and  ordinary  duration  of  the  es- 
tate was,  at  the  outset,  for  the  life  of  the  first  tenant; 
for  as  it  was  the  ability  and  merit  of  the  first 
tenant  that  had  been  rewarded  by  the  grant  originally,  it  ought 
in  the  feudal  view  to  terminate  with  his  death.  Such  estate 
could  not  in  the  nature  of  things  be  devised. 

But  if  as  a  special  favor  such  grant  survived  to  the  heirs  of 
the  first  tenant,  there  was  still  no  justification  for  allowing 
such  tenant  to  devise  these  lands  to  others  than  his  heirs,  who 
did  not  inherit  the  merits  of  the  first  taker. 

Second. — The  feudal  system  was  soon  made  a  means  of 
extorting  money  from  tenants  of  each  class  in  favor  of  their 
respective  superiors.  These  rights  of  extortion,  as,  for  in- 
stance, wardship,  the  right  of  the  superior  lord  to 
the  profits  of  the  lands  of  his  tenants  during  minor- 
ity, and  marriage,  the  right  of  the  superior  lord  either  to 
auction  off  his  ward  in  marriage,  or  to  compel  such  ward  to 
purchase  freedom  to  remain  unmarried,  would  have  been 
as  thoroughly  wrecked  by  the  will  as  they  were  after- 
wards by  the  use.  As  long,  therefore,  as  the  law  was  con- 
trolled by  feudal  considerations,  it  denied  validity  to  the  will. 

Tliird. — The  question  of  seisin  in  its  technical  sense  rapidly 

7  Indeed,  in  some  of  the  smaller  icnl  force  is  powerful  to.  this  day. 
German  states  fovulalism  as  a  ]iolit- 


10  LAW     OF     WILLS. 

became  paramount  in  land  law.  Land,  when  transferrable  at 
all,  could  be  transferred  only  by  livery  of  seisin  or  by  proceed- 
ings in  a  court  of  record.  The  will  could  be  classed  under 
neither  of  these  heads,  and  therefore  could  not  be  recognized  at 
law. 

It  may  be  urged  that  most  of  this  reasoning  is  purely  verbal, 
and  that  a  will  was  not  necessarily  antagonistic  to  feudalism. 
This  is  undoubtedly  true,  and  its  truth  is  sho\vn  by  the  fact 
that  the  will  did  persist  for  some  considerable  time  after  the  es- 
tablishment of  the  feudal  system.* 

However,  verbal  reasoning  prevailed,  as  it  did  so  often  at  the 
common  law,  and  by  the  end  of  the  thirteenth  century  the  com- 
mon law  courts  had  come  to  hold  uniformly  that  real  property 
could  not  be  devised  by  will  at  the  law  of  England,^ 

The  reason  for  this  rule  seems  to  be  in  part  the  fear  of  un- 
due influence  by  the  religious  men  in  the  last  hours  of  testa- 
tor's life.i^ 

"We  are  told  by  a  plaintive  monk  that  a  few  years  after 
Glanvil's  book  was  written  some  new  rule  was  put  in  force  at 
the  instance  of  Geoffrey  Fitz  Peter,  one  of  Glanvil's  suc- 
cessors in  the  justiciarship,  so  as  to  invalidate  a  gift  which 
"William  de  Mandeville,  Earl  of  Essex,  had  made  on  his  death 
bed  to  Walden  Abbey.  The  ministers  of  the  devil  had  of  late 
years  estabished  a  law,  which  until  then  had  never  been  heard 
of,  to  the  effect  that  no  one,  even  though  he  be  one  of  the  great, 
when  he  is  confined  to  his  bed  by  sickness,  can  bequeath  by  his 
last  will  any  of  the  lands  or  testaments  that  he  has  possessed, 
or  grant  them  to  those  men  of  religion  whom  he  loves  above  all 
others."  ^^ 

8  Pollock  and  Maitland's  History  ing  Monast.  IV,  147,  beginning: 
of  English  Law,  Vol.  2,  p.   321.  "Novi    igitur    recentesque    vencrunt 

9  Pollock  and  Maitland's  History  qui  lianc  inauditam  saeculo  legem 
of  English  Law,  Vol.  2,  pp.  323-327.  a  ministris  zabuli  noviter  invenfam 

loGlanvil,    VII,     1.  statuere  decreverunt."     William  de 

11  Pollock  and  Maitland's  History       Mandeville    died    1189. 
of  English  Law,  Vol.  2,  p.  325,  cit- 


LAW     OF     WILLS.  11 

§11.     Attempt  to  revive  wills  under  statute  De  Bonis, 

After  the  will  had  lost  its  standing  at  common  law,  the  stat- 
ute De  Donis  was  invoked  to  give  it  effect.  That  statute  (13 
Ed.  I,  Stat.  I,  C.  I,  Section  2,  A.  D.  1285)  provided  that  the 
wish  of  the  donor  should  be  observed  in  grants  of  land  accord- 
ing to  the  form  of  his  deed  of  gift  (secundum  for-mam  in  charta 
doni  sui).  It  was  questioned  at  once  if  the  insertion  in  the 
deed  of  the  words  "to  him,  his  heirs,  assigns  and  devisees" 
would  not  make  land  devisable.  The  courts  finally  answered 
this  question  in  the  negative,  and  in  the  thirteenth  century  it 
became  settled  doctrine  that  freehold  estates  in  land  were  not 
devisable,  whether  they  were  common  law  estates,  or  estates 
under  the  statute  De  Donis. ^" 

§12.     Exceptions  to  common  law  rule. 

To  this  rule  there  were  some  exceptions  made  by  local  cus- 
tom. In  Kent,  and  in  some  boroughs  and  scattered  manors, 
lands  remained  devisable.  An  estate  for  years,  being  a  mere 
chattel  interest,  could  be  disposed  of  by  testament ;  though,  as 
this  last  class  is  not  a  freehold  interest  in  lands,  it  is  no  excep- 
tion to  the  rule  already  stated.^ ^ 

§13.     Wills  in  equity. 

The  rise  of  equity  in  the  fourteenth  and  fifteenth  centuries 
produced  a  practical  revolution  in  the  law  of  wills.  The  old 
legal  rules  still  remained  nominally  in  full  force  and  effect. 
But  the  owner  of  land  couJd  deed  it  to  a  grantee  to  hold  to  the 
grantor's  use,  or  any  use  that  he  might  appoint,  and  equity 
would  enforce  this  use  against  the  grantee. 

The  original  grantor  could  appoint  to  this  use  by  will.  Put- 
ting it  in  another  way,  he  could  not  devise  the  land,  but  he 
could  devise  the  use,  which  carried  with  it  all  the  beneficial 
results  of  ownership.  By  the  early  part  of  the  fifteenth  cen- 
tury this  method  of  devising  uses  was  quite  common.-^  ^ 

12  Pollock   and   Maitland's  History       Littleton,  Lib.  II,  Cap.  10  Sec.  ]**? 
of  English  Law,  Vol.  2,  p.  27.  n  Black.  Con^.  11,  375. 

13  Black.    Com.    II,    374;    Coke   on 


12  LAW     OF     WILLS. 

§14.     The  Statute  of  Uses. 

The  power  to  devise  the  land  by  the  roundabout  method  of 
deeding  it  to  a  use  and  devising  the  use  was  only  one  of  the 
many  results  that  flowed  from  the  doctrine  of  uses.  The  feudal 
theory  of  land  ownership  was  attacked  by  equity  from  every 
side.  A  great  effort  of  the  reactionary  party  was  made  through 
Parliament,  and  in  1535  the  Statute  of  Uses  (27  Hen.  VIII, 
Ch.  10)  was  passed.  This  statute  provided  that  the  seisin 
should  follow  the  use;  that  is,  that  a  grant  to  A  to  the  use  of  B 
should  be  in  law  a  grant  to  B.  Hence,  a  deed  to  a  grantee  re- 
serving the  use  to  the  grantor  did  not  take  the  legal  title  out  of 
the  grantor,  and  a  deed  to  grantee  to  the  use  of  a  third  person 
was  in  legal  effect  a  deed  to  such  third  person.  It 
became  impossible  under  this  statute  to  create  a  use 
separate  from  the  legal  estate,  and  as  it  was  impos- 
sible in  law  to  devise  the  legal  estate,  the  abolition  of 
uses  made  it  once  more  impossible  to  devise  lands  at  all.^^ 

The  sequel  to  the  statute  of  uses  is  a  most  interesting  example 
of  how  difficult  it  is  to  foresee  the  practical  effect  of  new  de- 
partures in  legislation.  This  statute  overthrew  the  existing 
law  of  wills,  though  there  is  nothing  to  make  us  think  that  such 
a  result  was  intended  by  Parliament,  while  the  speed  with  which 
they  undid  this  result  makes  it  probable  that  this  effect  of  the 
statute  of  uses  was  unforeseen.  On  the  other  hand,  it  was  in- 
tended by  this  statute  to  abolish  equitable  estates,  and,  as  is  well 
known,  this  purpose  proved  a  practical  failure.  Conveyancers 
interposed  a  second  trustee,  deeds  were  made  to  A  for  the  use 
of  B  in  trust  for  C,  and  C's  equitable  estate  was  protected  as 
carefully  after  the  statute  as  it  was  before,  and  under  the  new 
system  could  be  devised  even  more  freely  and  easily  than  before. 

§15.     The  Statute   of  Wills. 

The  law  made  a  will  of  lands  impossible  for  just  five  years. 
In  1540  the  Statute  of  Wills   (32  Hen.  VIII,  Cap.   1)   was 
passed,  to  take  effect  July  20,  1540.     This  act  was  so  loosely 
dra^v^i  that  in  1542  and  1543  it  was  thought  advisable  for  Par- 
is piack.  Com.  IT,  .375. 


LAW     OF     WILLS. 


13 


liament  to  pass  a  statute  to  interpret  the  Statute  of  Wills,  and 
accordingly  the  Statute  of  34  and  35  Hen.  VIII,  Cap.  5,  was 
passed. 

The  effect  of  these  two  acts  was  to  enable  all  persons  except 
feme-eoverts,  infants,  idiots  and  persons  of  non-sane  mind  and 
memory  to  devise  by  will  and  testament,  in  writing,  two-thirds 
of  their  land  held  by  Knights's  service  and  all  lands  lield  by 
socage  tenure.  The  beneficiary  could  not  be  a  corporation 
by  the  terms  of  these  statutes.^  ^ 


16  Some  of  the  leading  sections 
of  32  Hen.  VIII,  Cap.  1,  are  as  fol- 
lows: 

Sec.  I.  ( 4 ) .  That  all  and  every  per- 
son  and   persons   having,   or   which 
hereafter    shall    have,    any   manors, 
lands,    tenements    or    hereditaments 
holden   in   socage  or   of   the  nature 
of   socage     tenure,    and   not   having 
any    manors,    lands,    tenements    or 
hereditaments    holden   of   the  king, 
our  sovereign  lord,  by  knight's  ser- 
vice, by  socage  tenure  in  chief,  or 
of   the   nature   of   socage   tenure   in 
chief,   nor   of   any   other   person   or 
persons    by    knight's    service    frora 
the   twentieth   day   of   July,   in   the 
year  of  our  Lord  God  MDXL,  shall 
have    full    and    free    liberty,    power 
and  authority  to  give,  dispose,  will 
and  devise,  as  well  by  his  last  will 
and  testament  in  writing,  or  other- 
wise  by    any   act   or    acts   lawfully 
executed    in    his    life,    all    his    said 
manors,  lands,  tenements  or  hered- 
itaments,   or    any    of    them,    at   his 
free   will    and    pleasure;     any    law, 
statute,    or    other    thing    heretofore 
had,  made  or  used  to  the  contrary 
notwithstanding. 

Sec.  II.  And  that  all  and  every 
person  and  persons  having  manors, 
lands,  tenements  or  hereditaments 
holden  of  our  sovereign  lord,  his 
heirs  or  successors,  in  socage  or  of 
the  nature  of  socage  tenure  in  chief, 


and  having  any  manors,  lands,  ten- 
ements or  hereditaments  holden  of 
any  other  person  or  persons  in 
socage  or  of  the  nature  of  socage 
tenure,  and  not  having  any  manors, 
lands,  tenements  or  hereditaments 
holden  of  the  king,  our  sovereign 
lord,  by  knight's  service,  nor  of  any 
other  lord  or  person  by  like  service, 
from  the  twentieth  day  of  July, 
in  the  said  year  of  our  Lord  God 
MDXL,  shall  have  full  and  free 
liberty,  power  and  authority  to 
give,  will,  dispose  and  devise,  as 
well  by  his  last  will  or  testament 
in  writing,  or  otherwise  by  any  act 
or  acts  lawfully  executed  in  his 
life,  all  his  said  manors,  lands,  ten- 
ements and  hereditaments,  or  any 
of  them,  at  his  free  will  and  pleas- 
ure;  any  law,  statute,  custom  or 
other  thing  heretofore  had,  made, 
or  used  to  the  contrary  notwith- 
standing. 

Sec.  IV.  And  it  is  further  en- 
acted by  the  authority  aforesaid. 
That  all  and  singular  person  and 
persons  having  any  manors,  lands, 
tenements  or  hereditaments  of  es- 
tate of  inheritance  holden  of  the 
king's  highness  in  chief  by  knight's 
service,  or  of  the  nature  of  knight's 
service  in  chief,  from  said  twen- 
tieth day  of  July  shall  have  full 
power  and  authority,  by  his  last 
will,    by   writing,    or    otherwise    by 


14 


LAW    OF    WILLS. 


§16.     Abolition  of  feudal  tenures. 

During  the  Civil  War  in  England  and  the  Protectorate  of 
Cromwell  (1642-1659)  the  feudal  incidents  of  the  ownership 
of  real  property  were  almost  wholly  disregarded.  When 
Charles  II  was  restored  (1660)  it  was  found  impossible  to 
revive  these  obsolete  feudal  incidents,  and,  accordingly,  by 
statute,  knight  service  was,  in  legal  effect,  reduced  to  free  and 
common  socage.  The  effect  of  this  statute  upon  the  law  of 
Wills  was,  therefore,  to  enable  the  owner  to  dispose  by  will  of 
all  his  estate  held  in  fee  simple. 

Since  1660  other  statutes  have  been  passed  from  time  to 
time  in  England  and  in  the  United  States,  controlling 
the  right  to  make  a  will  in  many  ways.     From  these  statutes 


any  act  or  acts  lawfully  executed 
in  his  life,  to  give,  dispose,  will 
or  assign  two  parts  of  the  same 
manors,  lands,  tenements  or  her- 
editaments in  three  parts  to  be 
divided,  or  else  so  much  of  the 
said  manors,  lands,  tenements  or 
hereditaments  as  shall  extend  or 
amount  to  the  yearly  value  of  two 
parts  of  the  same  in  three  parts 
to  be  divided,  in  certainty  and  by 
special  divisions,  as  it  may  be  known 
in  severalty,  to  and  for  the  advance- 
ment of  his  wife,  preferment  of 
his  children,  and  payment  of  his 
debts,  or  otherwise  at  his  will  and 
pleasure;  any  law,  statute,  cus- 
tom or  other  thing  to  the  contrary 
thereof    notwithstanding. 

Sec.  VII  confers  power  similar 
to  Sec.  IV  over  land  holden  from  the 
king  or  from  any  other  person  by 
knight's   service. 

Sec.  X  confers  powers  similar 
to  Sees.  IV  and  VII  over  lands 
holden  by  knight's  service  of  other 
persons  than  the  king;  and  over 
other  tenements  in  socage,  powers 
similar  to  those  given  in  Sees.  I 
and  II. 


Sec.  XI  confers  powers  similar 
to  Sees.  IV,  VII  and  X  over  lands 
holden  of  the  king  by  knight's  serv- 
ice; and  over  lands  holden  in 
socage,  powers  similar  to  those 
given  in  Sees.  I,  II  and  X. 

34  and  35  Hen.  VIII,  Cap.  5,  is  en- 
titled "The  bill  concerning  the  ex- 
planation of  wills." 

Some  of  the  leading  provisions 
are  here  given: 

Sec.  III.  .  .  .  words  of  estate  of 
inheritance  by  the  authority  of  this 
present  parliament,  is  and  shall  be 
declared  expounded,  taken  and 
judged  of  estates  of  fee-simple 
only. 

Sec.  XIV.  And  it  is  further  de- 
clared and  enacted  by  the  author- 
ity aforesaid.  That  wills  or  testa- 
ments made  of  any  manors,  lands, 
tenements  or  other  hereditaments, 
by  any  woman  covert,  or  person 
within  the  age  of  twenty-one  years, 
ideot,  or  by  any  person  de  nan  sane 
memory  shall  not  be  taken  to  be 
good  or  eflectual  in  law. 


15 

LAW    OF    WlLLb. 


.nd  the  rules  of  common  law,  which  are  still  unmodified  by 
statute,  have  been  evolved  the  rules  which  are  discussed  tn 

detail  in  this  book.  „  ,„.„     •  •  i 

I.  this  chapter  the  history  of  the  law  of  Wills  is  consid- 
ered only  to  the  extent  to  which  it  determines  the  place  of  wills 
and  test'aments  at  our  law;  the  further  history  of  the  law  o 
Wills  which  concerns  itself  with  the  separate  topics  discussed 
in  detail  in  this  book  being  reservedfor  discussion  m  the  re- 
spective chapters  devoted  to  each  topic. 

§17.     Testaments  in  pre-Norman  times. 

The  testament  passing  personal  property  has  a  less  compli- 
cated history. 

In  pre-Norman  times  the  power  to  dispose  of  personal  prop- 
erty by  testament  was  firmly  established.  It  is  not  clear 
whetheV  this  power  applied  to  the  whole  of  testator's  personal 
property  or  to  a  part  only. 

^18.     Doctrine  of  reasonable  parts. 

By  Glanvil's  time  (A.  D.  1187)  it  was  settled  that  the  power 
of  disposing  of  personal  property  by  testament  had  limits  m 
some  cases.  If  the  testator  left  neither  wife  nor  children,  he 
could  dispose  of  all  of  his  personal  property  by  testament; 
but  if  he  left  either  wife  or  children,  he  could  dispose  of  one- 
half  of  his  personal  property  by  testament,  the  other  half  going 
to  the  surviving  wife  or  children,  as  the  case  might  be;  while 
if  he  left  both  wife  and  children,  he  could  dispose  of  but  a 
third  of  his  personal  property  (known  as  the  ''deads  part  ). 
One  third  of  his  personal  property  (know  as  the  "wiles 
part")  went  to  his  wife;  the  remaining  third  (known  as 
"child's  part"  or  "bairn's  part")  going  to  the  children.  ' 

There  has  been  some  dispute  whether  the  rules  above  stated 
were  the  common  law  of  England  or  only  local  customs. 

The  weight  of  authority  is  that  they  were  the  common  law 
of   England,    and   were   in   force   in   Glanvil's   day   over  the 
whole  of  England. 
17  Blackstone.  Ill,  492. 


16  LAW    OF     WILLS. 

§19.  Power  of  testator  to  dispose  of  his  entire  personal  prop- 
erty. 

This  rule  ceased  to  be  the  law  in  a  great  part  of  England, 
so  gradually  that  Blackstone  says  that  it  is  impossible  to  trace 
out  when  first  this  alteration  began,  and  so  thoroughly  that 
it  was  possible  with  some  show  of  truth  "to  deny  that  it  ever 
had  been  the  law.  It  was  established  by  the  reign  of  Charles 
I  (1625-1649)  that  the  general  rule  in  England  was  that  tes- 
tator could  dispose  by  testament  of  any  or  all  of  his  personal 
property,  except  where  the  relics  of  the  old  law  still  lingered, 
under  the  name  of  local  custom,  as  in  Yorkshire  and  London. 
These  so-called  local  customs  were  one  by  one  uprooted  by  Par- 
liament in  a  series  of  repealing  statutes,  and  finally  the  general 
statute,  1  Vict.  C.  26  (1837),  gave  the  testator  the  general 
power  of  disposing  of  the  whole  of  his  personal  property. 

As  in  the  case  of  the  will,  the  history  of  the  development 
of  law  upon  the  various  topics  arising  under  the  law  of  testa- 
ments will  be  considered  under  their  respective  chapters. 

§20.  History  of  the  law  of  wills  and  testaments  in  the  United 
States. 

The  English  colonists  who  settled  the  Atlantic  coast  of  what 
is  now  the  United  States  in  the  seventeenth  century  brought 
with  them  the  common  law  of  England  as  modified  by  the  Stat- 
ute of  Wills.  Accordingly,  where  not  expressly  limited  by  local 
statute,  the  power  of  a  testator  to  dispose  of  his  realty,  as  well 
as  his  personalty,  by  last  will  and  testament,  has  always  been 
recognized  in  the  courts  of  the  United  States,  ^ot  only  was 
American  law  from  the  first  held  to  be  modified  by  the  Statute 
of  Wills,  but  the  feudal  system  was  never  generally  held  to  be  a 
part  of  our  law  as  being  unsuited  to  our  institutions. 

The  law  of  Wills  in  the  United  States  is  thus  based  upon 
English  law,  and  continuous  with  it  in  such  states  as  were 
founded  by  the  English.  In  the  South  and  West  of  the  United 
States,  however,  the  original  European  stock  was  not  English, 
but  French  and  Spanish. 

In  these  sections,  therefore,  m^arked  traces  of  Koman  law, 
as  modified  by  the   French   and    Spanish,    are   to  be   foimd. 


LAW     OF     WILLS.  17 

Lonisiaua  has  put  into  statutory  form  the  French  law,  which 
ill  turn  was  based  upon  the  Roman.  In  California  and  some 
of  the  territories  adjoining  on  the  southeast  the  law  of  Wills 
is  in  part  of  Spanish  origin. 

From  these  states  statutes  have  been  adopted  in  some  other 
states.  The  net  result  may  be  said  to  be  that  in  the  greater 
part  of  the  United  States  the  law  of  Wills  is  of  pure  English 
origin,  modified  by  modern  statutes,  showing  some  influence  of 
Spanish  and  French  law  in  some  of  the  Southern  and  Western 
states ;  while  in  Louisiana  the  law  of  Wills  is  of  French-Roman 
origin,  gradually  yielding  in  some  resjDect  to  the  influence  of 
tne  remaining  common  law  states. 


JS  LAW     OF     WILLS. 


CHAPTER    III. 


NATURE    AND    EXTENT   OF  TESTAMENTARY  POWER. 

§21.  General  extent  of  legislative  control  before  testator's  death. 

The  nature  and  extent  of  testamentary  power  must  be  fully 
understood  and  appreciated  at  the  outset  of  the  study  of  the 
subject  in  order  to  appreciate  its  position  in  our  jurisprudence 
and  the  force  and  effect  of  statute  law. 

The  right  to  make  a  will  is  in  no  sense  a  property  right. 
It  did  not  exist  for  realty  at  common  law,  nor  at  one  time  for 
more  than  a  fraction  of  a  testator's  personalty.  It  is  there- 
fore not  a  right  protected  by  any  of  the  constitutional  pro- 
visions whereby  property  is  protected.^ 

It  is  purely  a  statutory  right,  subject  to  the  control  of  the 
legislature.  After  real  property  has  been  acquired  the  legis- 
lature may  add  new  disqualifications  and  limitations  to  testa- 
mentary power.  Thus,  after  real  property  was  acquired  the 
legislature  imposed  the  new  restriction  that  a  testator  who  left 
issue  surviving  him  could  not  leave  property  to  a  charity  unless 
by  a  will  made  at  least  a  year  before  his  death.  This  statute 
was  held  to  be  perfectly  constitutional  as  to  such  previously 
acquired  property.^ 

Even  after  a  will  has  been  executed  the  legislature  may  add 
now  r(>quirements  as  to  form  of  the  will,  capacity  of  testator 
and  the  like,  at  any  time  before  testator's  death;  and  if  the 
legislative  intent  is  manifest  that  such  rules  are  to  be  applied 

1  Patton  V.  Patton,  .30  0.  S.  590.  2^Patton  v.  Patton,  39  0.  S.   5D0. 


LAW    OF    WILLS. 


19 


to  wills  already  executed,  no  constitutional  restrictions  stand 
in  the  way.^ 

Thus,  when  the  state  constitution,  making  devises  of  land 
to  educational  associations  and  corporations  void,  was  adopted 
after  the  will  was  executed,  and  before  testator  died,  it  was 
held  that  such  devises  in  the  will  were  thereby  made  void.^ 

But  unless  the  intention  of  the  legislature  to  make  the  statute 
apply  to  wills  already  executed  is  manifest,  the  courts  con- 
strue statutes,  which  change  the  law  of  Wills,  as  applying  only 
to  wills  executed  after  the  statute  is  passed.^ 

Thus,  where  a  married  woman  executed  a  will  which,  when 
made,  was  invalid  because  there  were  no  witnesses  thereto,  and 
subsequently  the  legislature  provided  that  no  witnesses  should 
be  necessary,  it  was  held  that  the  statute  was  not  retroactive, 
and  that  the  will  was  invalid.*'  So  where  a  testator  made  a 
will  at  a  time  when  he  lacked  capacity,  a  subsequent  statute 
triving  capacity  to  persons  of  testator's  class  was  held  not  to 
rotroact,  and  the  will  was  invalid."^  And  a  statute  providing 
that  marriage  shall  operate  as  a  revocation  of  a  will  made 
before  marriage,  which  will  does  not  on  its  face  show  that 

3  In    re    Bridger     [1894],    1    Ch.  Hofl'man  v.   IIoiTman,   26  Ala.  535 

297;    [1893],  1  Ch.  44;   Hoffman  v.  Towell    v.     Powell,     30    Ala.     697 

Hoffman,    26    Ala.    535;    Learned's  Gregory     v.     Gates,     92     Ky.     532 

Estate,    70  Cal.    140;    Hargroves  v.  Clayson's     Will,      24      Oreg.      542 

Redd,     43     Ga.     142;     Perkins     v.  Packer  v.  Packer,  179  Pa.  St.  580 

George,    45    N.    H.    453;    Wakefield  Kurtz   v.    Saylor,   20    Pa.    St.    205 

V.   Phelps,    37   N.   H.   295;    Loveren  Camp    \^    Stark,    81    Pa.    St.    235 

V.  Lamphrey,  22  N.  H.  434;  Mundy  Shinkle  v.  McCrock,  17  Pa.  St.  159 

V.  Mundy,  15  N.  J.  Eq.  290;   Clay-  Greenough  v.  (Jreenough,  11  Pa.  St 

son's   Will,   24   Oreg.   542;    34   Pac.  489;    Barr   v.   Graybill,    13   Pa.    St 
358;  Long  v.  Zook,  13  Pa.  St.  400;   ,    396:    Murry    v.    Murry,    6    Watts, 

Langley   v.   Langley    18   R.   I.   618;  353;   Mulkn  v.  McKehy,  5  Watts. 

30  Atl.  465;   Elcoc'k's  Will,  4  McC.  399;    Giddings   v.    Turgeon,    58    Vt. 

(S.  Car.)   39;  Blockman  v.  Gordon,  106. 

2  Rich.  Eq.    (S.  Car.)    43;   Hender-  <' Packer   v.    Packer,    179    Pa.    St. 

son    V.    Ryan,    27    Tex.    670;    Ham-  580. 
ilton  V.   Flmn,   21   Tex.   713.  7  Gregory   v.   Gates,   92  Ky.   5.32: 

4  Blackbourn  v,  Tucker,  72  Miss.  Burkett  v.  Whittemore,  36  S.  Car. 
735_  428;     Mitchell    v.    Kimbrough,     98 

5  Lane's    Appeal,    57    Conn.    182;  Tonn.  53.5. 


20  LAW     OF     WILLS. 

it  was  made  in  contemplation  of  marriage,  is  held  not  to  be 
retroactive.  Hence  it  does  not  apply  where  the  marriage  was 
contracted  before  the  statute  was  passed.^  But  it  does  apply 
where  the  will  was  made  before  the  statute  was  passed,  and 
the  marriage  was  contracted  afterwards.^  Statutory  rules  of 
construction  are  also  held  not  to  be  retroactive.^*^ 

§22.     General  extent  of  legislative  control  after  testator's  death. 

Upon  the  death  of  testator,  property  rights  become  fixed. 
If  his  will  is  valid,  the  interest  of  his  legatees  and  devisees 
becomes  a  vested  property  right;  if  his  will  is  invalid,  the 
vested  property  right  accrues  to  his  heirs  and  next  of  kin.^^ 
The  legislature  can  not,  therefore,  by  statute  affect  the  validity 
of  wills  executed  by  testators  who  have  died  before  the  statute 
was  passed.  If  the  will  was  invalid  under  the  law  in  force 
when  testator  died,  no  subsequent  statute  can  make  it  valid  ;^- 
while  if  the  will  is  valid,  no  subsequent  legislation  can  avoid 
it.^^  The  legislature  may,  after  testator's  death,  alter  the  law 
as  to  settlement  of  estates  so  as  to  include  the  estate  of  one 
already  deceased.^ ^  Where,  at  testator's  death,  the  devisee 
of  a  contingent  remainder  could  not  take  on  account  of  alienage, 
but  by  change  of  statute  before  the  remainder  vested,  such  dis- 
ability was  removed,  it  was  held  that  such  devisee  could  take, 
the  state  never  having  acquired  title.^^  The  law,  too,  may  be 
so  changed  as  to  affect  collateral  and  prospective  rights  of  per- 
sons not  beneficiaries  nor  heirs  of  testator.  Thus,  after  a 
testator  had  died,  leaving  a  legacy  to  a  married  woman,  the 
legislature  could  alter  the  law  so  as  to  vest  the  legacy  in  the 

8  Swan  V.   Sayles,   16,5  Mass.  177.  i3  White  v.   Keller,   68   Fed.   Rep. 

9  See  See.  281.  706;    Kichter  v.   Bohnsack,   144  Mo. 

10  Butler  v.  Parochial  Fund,  92  516;  People  v.  Powers,  147  N.  Y. 
Ilun.  96.  104. 

11  Jones  V.  Robinson,  17  0.  S.  i*  Bredenburg  v.  Barlin,  36  S. 
171;  MeCarty  v.  Hoffman,  23  Pa.  Car.  197  (giving  surviving  execu- 
St.    507.  tor   power   to    sell    lands   which    the 

12  Remington     v.     Bank.     76    Md.  will  directed  to  be  sold). 

546:     25     Atl.     666;     Chwatal     v.  is  McGillis  v.  McGillis,  154  N.  Y. 

Schreiner.   148   N".  Y.   683;    Hartson       532. 
v.   Elden.  50  X.  J.   Eq.   522. 


LAW     OF     WILLS.  21 

married  woman  free  from  any  control  of  her  Inisband,  if  the 
statute  were  passed  before  the  husband  reduced  the  legacy  to 
his  possession.^  ^ 

§23.     Power  of  testator  to  exclude  his  wife  and  children  from 
a  share  in  his  estate. — General  rule. 

In  many  states  the  wife  has  a  dower  interest  in  her  hus- 
band's realty  and  a  distributive  share  in  his  personal  estate, 
from  which  he  can  not  exclude  her  by  will.^^  Apart  from  this 
provision  for  the  benefit  of  the  wife,  the  general  rule  is  that 
a  testator  may  by  will  exclude  both  wife  and  children  from 
sharing  in  his  estate  by  devising  the  whole  of  his  property  to 
others  by  a  will  executed  in  due  form  of  law.^^  In  Texas,  at 
one  time,  a  testator  could  deprive  his  surviving  children  of 
only  one-fourth  of  his  estate.^^  This  statute  was  subsequently 
repealed  and  testator  given  full  power  to  disinherit  his  chil- 
dren.2"  In  Missouri,  under  the  act  of  1805,  it  seems  that  a 
wife  who  leaves  no  descendants  can  not  exclude  her  husband 
from  a  share  of  one-half  of  her  estate,  subject  to  her  debts.^^ 

In  Louisiana  a  second  wife  can  take  by  will  only  one-third  of 
her  husband's  estate  if  he  left  children  surviving  by  his  first 

16  Trapnell  V.  Conklyn,  37  W.  Va.  504;    In    re    Merriman,    108    Mich. 

2^2  454;    McFadin   v.   Catron,    120   Mo. 

11  See  Sec.   137.     In  many  states  252;    Farmer    v.    Farmer,    129    Mo. 

the  husband  has  a  similar  interest  530;    Maddox   v.   Maddox,    114   Mo. 

in    his    wife's    property.      Hays    v.  35;   Co.ch  v.  Gentry    113  Mo.  248; 

•   Seavev  (N.  H.)    (1900)   40  Atl.  189.  Smith  v.  Smith,  48  N    J    Eq.  o6G; 

isMackall   v.  Mackall,   135  U.   S.  Boylan  v.  Sleeker,  15  Is.  J.  Lq.  310; 

171-    Henry   v.   Hall,   106   Ala.   84;  Hubbard   v.    Hubbard,   7    Oreg.   42; 

Kno'x  V.  Knox,  95  Ala.  495;   In  re  Nicholas    v.    Kershner,    20    U.    \  a. 

Kaufman's    Estate,    117    Cal.    288;  251. 

Wilson's  Estate,  117  Cal.  262,  280;  •        lo  Paschal  v.  Acklm,  2<   Tex.  1<3. 

Taylor    v.    Cox,    153    111.    220;    Mc-  20  Henderson    v.    Ryan,    2/     lex. 

Common     v.     McCommon.     151     HI.  670;    Hamilton    v.    Flinn,    21    Tex. 

428;   Manatt  v.  Scott,   106  lo.  203;  713.                                         ,,,,,, 

Bennett    v.    Hibbert.    88    lo.     154;  -  Riohter   v.    Bohnsaek     144   Mo. 

Barlow   v.   Waters    -   Ky.   -;    28  516.       So    in    Kansas.      Nueber    v. 

S.   W.   785;    Hess's   Will,   48   Minn.  Shod   (Kan.  App.),  5o  Pac.  3o0. 


22  LAW     OF     WILLS. 

marriage.^2  So  a  testator  may  exclude  other  relatives  from 
sharing  in  his  estate.^^ 

§24.     Exclusion  of  wife  and  children  in  favor  of  mistress   or 
illegitimate  children.  _  ,  , 

In  some  states  a -gift  in  excess  of  a  certain  fraction  of  tes- 
tator's property  to  his  illegitimate  children,  to  the  exclusion  of 
his  wife  or  legitimat-e  children,  is  forbidden  by  statute.  Thus, 
in  South  Carolina  a  testator  having  a  wife  and  legitimate  chil- 
dren can  not  devise  more  than  one-fourth  of  the  clear  value 
of  his  propertv  to  his  mistress  or  illegitimate  children.  ^^  'No 
device  is  permitted  to  evade  this  prohibition.  So  when  testa- 
tor devised  one-fourth  of  his  property  to  his  illegitimate  child, 
and,  in  addition  to  this,  left  a  legacy  to  his  executor,  with  the 
secret  understanding  that  it  was  to  be  used  for  the  illegtimate 
child,  such  legacy  was  held  void.^^ 

In  some  states  it  is  forbidden  by  statute  for  a  testator  to 
devise  property  to  his  mistress,  to  the  exclusion  of  his  wife 
or  children.*  Unless  there  is  such  a  statute,  however,  no  rule 
of  law  prevents  a  testator  from  devising  property  to  an  ille- 
gitimate child  in  existence  when  the  will  is  executed,  even  to 
the  exclusion  of  his  legitimate  children. 

§25.     Exclusion  of  wife  and  children  in  favor  of  charities, 

'  In  many  states  it  is  provided  by  statute  that  a  testator  can 
not  by  will  devise  or  bequeath  property  to  a  charitable  cor- 
poration or  charitable  use  unless  by  a  will  executed  a  specified 

22Theurer's     Succession,     38     La.  son,   —   S.    Car.   — ;    46   L.   R.   A. 

Ann.  510.  517. 

23  Cutler  V.  Cutler,  103  Wis.  258.  25  Gore  v.  Clark,  37  S.  Car.  537 ; 

24Breithaupt  v.  Bauskett,  1  Rich.  16  S.  E.  614;  20  L.  R.  A.  465. 

Eq.    465,    Appx;    Hull    v.    Hull,    2  'Gibson    v.    Dooley,  32    La.    Ann. 

Strob.    Eq.    174;    Taylor    v.    McRa,  959. 
3  Rich.  Eq.   96;    Beaty  v.   Richard- 


LAW     OF     WILLS.  23 

time  before  the  death  of  testator.-*'  The  length  of  time  that 
must  in  such  cases  intervene  between  the  execution  of  the  will 
and  the  death  of  the  testator,  in  order  to  render  the  will  valid, 
depends  upon  the  local  statute,  and  varies  from  thirty  days  to 
a  year  in  the  diil'crent  states.  In  such  a  case  the  only  persons 
who  can  take  advantage  of  the  invalidity  of  the  will  are  those 
to  whom  the  j)roperty  would  pass  if  the  devise  to  the  charity 
were  defeated.  Thus,  in  a  recent  Ohio  case  testator  devised 
to  the  Ohio  State  University  a  certain  amount,  to  go  to  his 
nephews  if  the  devise  should  fail;  provided  that  if  his  daugh- 
ter should  ratify  the  bequest  to  the  university  the  said  nephews 
should  not  in  such  case  receive  such  bequest.  Testator  died 
within  the  year,  leaving  a  daughter,  who  ratified  the  bequest. 
It  was  held  that  the  nephews  in  such  case  could  not  take  ad- 
vantage of  the  invalidity  of  the  bequest.^'^ 

The  fact  that  the  beneficiary  is  a  corporation,  authorized  by 
its  charter  to  take  devises  and  legacies,  does  not  prevent  the 
application  of  these  statutes  as  to  the  time  that  must  elapse 
•between  testator's  execution  of  the  will  and  his  death.^^  Un- 
der these  statutes  the  date  of  the  execution  of  the  will  is  ma- 
terial. When  the  different  acts  of  execution  take  place  at  the 
same  transaction  the  date  of  executon  is,  of  course,  purely  one 
of  fact.  If  they  take  place  at  different  occasions  the  date  of 
the  execution  of  the  will  is  the  date  when  the  last  act  required 
by  statute  was  performed.  Thus,  a  testator  signed  his  will 
and  on  a  later  occasion,  three  months  afterward,  acknowledged 
it  as  his  will  before  two  witnesses.  The  will  was  controlled  by 
Pennsylvania  law,  by  which  the  witnesses  were  required  to 

29Kelley     v.      Welborne       (Ga.)-,  Gans,    110    Pa.    St.    17;    Milwaukee 

1900;  35  S.  E.  G3(i;  Wetter  v.  Protestant  Home  for  Aged  v. 
Habersham,   60  Ga.   193;    Schmidt's    .  Becher,    87    Wis.    409;    45    Am.    & 

Estate,   15  Mont.   117;   Fairchild  v.  Eng.  Corp.  Cas.  502. 
Edson,  154  N.  Y.  199;  Kavanaugh's  27  Trustees    v.    Folsom,    50    0.    S. 

Will,    125   N.   Y.    418,   affirming   53  701.     To  a  like  effect  is  Trustees  of 

Hun.    1;   Trustees  O.   S.  U.  v.   Fol-  Amherst   v.   Ritch,   l.ll   N.   Y.   282; 

som,  56  O.  S.  701;  Luebbe's  Estate.  Allen  v.  Stevens,  49  N.  Y.  S.  431. 
179   Pa.    St.   447;    Knight's   Estate,  28  Kavanaugh's   Will,    125    N.    Y. 

159  Pa.  St.  500;   Hodnett's  Estate,  418.  affirming  53  Hun.  1;  Fairchild 

154   Pa.   St.   485;    Hoffner's  Estate,  v.   Edson,   154  N.  Y.   199,  affirming 

161  Pa.  St.  331 ;  Frazier  v.  Church,  77    Hun.   298. 
147    Pa.    St.    250;    Reimensnydcr    v. 


24  LAW    OF    WILLS. 

attest  but  not  to  suLscribe.  It  was  held  that  the  will  was  ex- 
ecuted upon  the  day  when  testator  acknowledged  the  will,  and 
as  he  died  on  that  same  dav,  the  will  was  invalid.-^ 

Another  question  sometimes  presented  under  these  statutes 
arises  where  two  or  more  wills  have  been  executed,  the  latest 
of  which  is  executed  so  short  a  time  before  testator's  death 
that  it  is  invalid,  and  the  devise  or  bequest  is  claimed  under 
the  earlier  will.  This  is,  of  course,  a  question  of  revocation. 
If  the  second  will  disposes  of  all  testator's  property  it  revokes 
a  prior  gift,  even  if  the  same  gift  is  given  by  the  later  will  f° 
while  a  codicil  purporting  to  "revoke"  a  bequest,  but  only 
changing  the  date  of  payment,  was  held  not  to  revoke  a  gift 
under  a  prior  will.^^  The  gift,  furthermore,  must  be  to  a 
charitable  corporation,  use  and  the  like,  as  required  by  statute, 
in  order  to  be  invalid.  Thus,  a  gift  to  the  "pastor"  of  a  des- 
ignated church  is  not  invalid  if  the  will  is  executed  within  the 
time  limited.''''" 

Another  restriction  upon  testator's  excluding  his  wife  or 
children  from  his  estate  in  favor  of  a  charity  limits  the  amount 
of  his  estate  which  testator  may  devise  to  charity.  Where  such 
restriction  is  in  force  it  allows  testator  to  dispose  of  from  a 
third  to  a  half  of  his  estate  in  this  manner.^^  Many  of  the 
states  in  which  restrictions  like  these  exist  limit  both  the 
amount  of  property  wliich  testator  may  bestow  in  charity  and 
the  time  which  must  elapse  between  the  execution  of  the  will 
and  the  death  of  testator.^'*  Where  such  restrictions  are  in 
force  no   evasion   is   allowed.      Thus  testator   can   not   devise 

29  Gray's  Estate,   147   Ta.   St.   G7.  Welborne     (Ga.).    1000;     35    S.    E. 

3oHofTner's    Estate,    IGl    Pa.    St.  C36 ;   White  v.  McKeon,  93  Ga.  343 

331.  (which  holds    that    §2419    limiting 

31  \Yatt's  Estate,  168  Pa.  St.  422.  testator's  power  to  one-third  of  his 

(Ilenee   the   gift  was   good,   though  property    was    not    in    force    before 

the    codicil    was    executed    so    near  1S63)  ;    Healy    v.    Reed,    153    Mass. 

testator's   death   as   to   be   invalid.)  1.17;    10  L.  E.  A.  766;   Trustees  of 

32Hodnett's   Estate,    154   Pa.    St.  Amherst  v.   Ritch,   151   N.   Y.   282; 

485.  Crane's  Will     (X.  Y.)     (1899);    54 

33  Bowdoin  College  v.  Merritt,  75  N.  E.  1089. 

Fed.   480    (based   on   the   California  34  Kelley     v.     Welborne        (Ga.) 

Statute)  ;    Royer's   Estate,   123   Cal.  (1900)  ;  35  S.  E.  636. 
614;    44    L.    R.    A.    304;    Kelley    v. 


LAW     OF     WILLS.  25 

property  to  an  individual  on  secret  trust  for  a  charity  when 
such  devise  exceeds  the  amount  of  property  which  may  he  thus 
disposed  of— iu  this  case,  one-half  of  testator's  estate.=^^ 
Where  these  restrictions  apply  to  religious  and  charitable  cor- 
porations, and  the  like,  they  can  not  be  extended  to  municipal 
corporations.^^  In  other  jurisdictions  testator  is  entirely  pro- 
hibited or  greatly  restricted  from  devising  real  property  to  any 
religious  or  charitable  purposes.^'^ 

A  gift  of  mixed  realty  and  personalty  has  been  held  not 
totally  void  where  the  statute  prohibited  gifts  of  realty,  but 
is  good  as  far  as  the  personalty  is  concerned.^^ 

Where,  under  the  constitution,  only  one  acre  of  land  may 
be  devised  to  a  religious  corporation  a  devise  of  a  larger  tract 
was  held  valid  where  the  title  failed  as  to  all  but  one  acre."^*^ 


§26.     Perpetuities. 

Another  restraint  imposed  by  law  upon  testamentary  power 
is  as  to  the  length  of  time  which  may  be  interposed  between 
the  death  of  testator  and  the  vesting  of  the  estate  devised  or 
bequeathed.  This  topic  logically  should  be  presented  here, 
but  it  is  so  interwoven  with  trusts  that,  with  this  reference 
to  it  here  it  is  reserved  for  discussion  hereafter.^ ° 

35  Trustees    of    Amherst    College  bequeathing  money  to,  invest  in  land 

V    Hitch    151  N.  Y.  282.  in  England,  hut  this  does  not  apply 

se' Crane's  Will     (N.  Y.)    (1899);  to    c-olonial    wills):    Canterbury    v. 

54  N   E    1089.  Wyburn      (P.    C.)      (1805):    A.    C. 

37/,,   're  Thompson     (C.  A.)   L.  R.  89;    64  L.  J.   P.   C,  N.   S..   36. 

45,      Ch.     D.      101:     In    re    Parker  -^^In    re    Staebler,    21    Ont.    App. 

(1891),     1    Ch.    682:    Chambers    v.  266. 

lliggins     (Ky.)    49   S.   W.   430:    20  so  Barker    v.    Donnelly.    112    Mo. 

Ky.    L.    Rep.    1425:    Blackbourn    v.  561. 

Tueker.    72    Miss.    7.35:    Barker    v.  4o  See  Sec.  625  e<  seg. 
Donnelly,    112    Mo.    561     (or    from 


26  LAW    OF    WILLS. 


CHAPTER  IV. 

THE  LAW  BY  WHICH  A  WILL  IS  GOVERNED. 

§27.     General  principles  controlling  conflict. 

This  topic  is  often  discussed  under  the  name  of  "conflict 
of  laws."  Such  title,  while  convenient  and  acceptable  by  long 
usage,  is  misleading;  for,  while  there  is  at 'times  such  a  thing 
as  a  conflict  of  laws,  it  is  extremely  rare,  and  the  rules  dis- 
cussed in  this  chapter  are  the  rules  by  which  such  conflict  is 
prevented.  A  conflict  of  laws  in  the  correct  sense  probably 
exists  only  when  the  rules  for  preventing  conflicts  are  them- 
selves in  conflict. 

When  a  testator  is  domiciled  in  one  state  at  the  time  of  his 
death,  and  leaves  property  situated  in  another  state,  the  ques- 
tion of  the  validity  and  enforceability  of  his  will  requires,  in 
the  first  instance,  a  determination  as  to  which  state's  system 
of  law  is  the  controlling  one.  The  answer  to  this  question  may 
be  decisive  in  determining  the  important  questions  of  the  legal 
capacity  of  testator  to  make  a  will ;  the  proper  form  of  such 
will;  whether  it  has  been  revoked  or  not;  the  meaning  and 
construction  of  such  will;  and  the  legality  of  the  purpose 
which  it  seeks  to  accomplish. 

§28.     General  rule  as  to  realty. 

The  general  common  law  rule  on  this  subject  in  the  United 
States  is  that  in  all  these  points  a  will  devising  real  property 
is  governed  by  the  law  of  the  place  where  the  land  is  situated, 


LAW     OF     WILLS. 


27 


or,  as  it  is  called,  the  lex  rei  sitae}  This  general  rule  is 
practically  without  exception  where  not  moditied  by  statute, 
as  far  as  concerns  the  capacity  of  the  testator  ^  or  the 
form  of  the  will.^  Thus,  where  the  will  was  executed 
with  a  number  of  subscribing  witnesses,  sufficient  by 
the  law  of  the  state  where  testator  was  domiciled,  but  not 
sufficient  by  the  law  of  the  state  where  the  land  is  situate,  it 
is  invalid  ;■*  and  a  holographic  will,  good  by  the  law  of  testa- 
tor's domicile,  but  not  by  the  law  of  the  state  where  the  land 
is  situated,  is  not  sufficient  to  pass  title  to  such  land.^  So  the 
question  of  revocation  is  by  the  great  weight  of  authority,  de- 
termined by  the  law  of  the  place  where  the  land  is  situate.^ 


1/m  re  Piercy  (1895)  ;  1  Ch.  83; 
64  L.  J.  Ch.  N.  S.  249;  Wood  v. 
Paine,  60  Fed.  807;  De  Vaughn 
V.  Hutchinson,  165  U.  S.  566;  Kerr 
V.  Moon,  9  Wheat.  (U.  S.)  565, 
McCormick  v.  Sullivant,  10  Wheat. 
(U.  S.),  192;  Varner  v.  Bevil, 
17  Ala.  286;  Dickey  v.  Vann, 
81  Ala.  425;  Readman  v.  Ferguson, 
13  App.  D.  C.  60;  Knight  v. 
Wheedon,  104  Ga.  309;  30  S.  E. 
794 ;  Frazier  v.  Boggs,  37  Fla.  307 ; 
Evansville,  etc.,  Company  v.  Winsor, 
148  Ind.  682;  Lucas  v.  Tucker,  17 
Ind.  41 ;  Calloway  v.  Doe,  1  Blackf. 
(Ind.)  372;  Rogge's  Succession,  49 
La.  Ann.  37;  Eyre  v.  Storer,  37  N. 
H.  114;  Trowbridge  v.  Metcalf,  39 
M.  Y.  Supp.  241;  Bailey  v.  Bailey, 
8  •  Ohio,  239 ;  Meese  v.  Keefe,  10 
Ohio,  362 ;  Pepper's  Estate,  148  Pa. 
St.  5;  Holman  v.  Hopkins,  27  Tex. 
38. 

2  Evansville  etc.  Company  v. 
Winsor,  148  Ind.  682;  Eyre  v. 
Storer,  37  N.  H.  114;  Carpenter  v. 
Bell,  96  Tenn.  294  (married 
woman). 

3  Goodman    v.    Winter,    64    Ala. 
410;   Crolly  v.  Clark,  20  Fla.  849 
Frazier    v.    Boggs,     37     Fla.     307 
Knight  V.   Wheodon,    104   Ga.    309 


30  S.  E.  794;  Lynch  v.  Miller,  54 
lo.  516;  Robertson  v.  Barbour,  6 
T.  B.  Mon.  524;  Cornelison  v. 
Browning,  10  B.  Mon.  425;  Ear- 
hart's  Succession,  50  La.  Ann.  524 : 
Potter  v.  Titcomb,  22  Me.  300; 
Keith  v.  Keith,  97  Mo.  223;  Nelson 
V.  Potter,  50  N.  J.  L.  324;  Knop- 
pel  V.  Holm,  52  N.  Y.  Supp.  330; 
Holman  v.   Hopkins,   27   Tex.   38. 

4  Crolly  V.  Clark,  20  Fla.  849; 
Knight  V.  Wlieedon,  104  Ga.  309; 
30  S.  E.  794;  Cornelison  v.  Brown- 
ing, 10  B.  Mon.  (Ky.)  425;  Nelson 
V.  Potter,  50  N.  J.  L.  324. 

5  Lynch  v.  Miller,  54  lo.  516; 
Jones  V.  Robinson,   17  O.  S.   171. 

c  Evansville  etc.  Company  v. 
Winsor,  148  Ind.  682.  De  Vaughn 
V.  Hutchinson,  165  U.  S.  566;  Jones 
V.  Habersham,  107  U.  S.  174; 
Clark's  Appeal,  70  Conn.  195  j  Fra- 
zier V.  Boggs,  37  Fla.  307 ;  Sevier 
V.  Douglass,  44  La.  Ann.  605 ; 
Guaranty  Trust  Co.  v.  Maxwell, 
—  N.  J.  Eq.  — ;  Pratt  v.  Doughlass, 
38  N.  J.  Eq.  516  ;  30  Atl.  339  ;  White 
V.  Howard,  46  N.  Y.  144;  Knox  v. 
Jones,  47  N.  Y.  389;  Page's  Estate, 
75  Pa.  St.  87;  Atkinson  v.  Staigg, 
13  R.  I.  725;  Harrison  v.  Weather- 
bv,    180   111.   418. 


28  I.AW     OF     WILLS. 

§29.     Law  controlling  in  construction  of  will. 

An  important  exception  to  the  unanimity  of  judicial  opin- 
ion on  this  subject  is  the  question  of  the  law  governing  the  con- 
struction of  the  will.  The  weight  of  authority,  in  analogy  to 
the  other  topics  already  considered,  holds  that  the  construc- 
tion of  the  will  is  to  be  determined  by  the  lex  rei  sitae.  So  a 
will  devising  property  to  "heirs"  of  a  person  is  governed  by 
the  lex  rei  sitae  as  to  the  determination  of  whether  an  illegit- 
imate child  subsequently  legitimated  is  an  heir.'^  But  a  large 
minority  of  the  courts  hold  that  the  construction  of  a  will  is 
to  be  governed  by  the  lex  domicilii,  even  as  concerning  land 
situated  in  another  jurisdiction,  unless  it  shall  appear  from 
the  will  that  he  drew  it  with  reference  to  the  lex  rei  sitae.^ 
Thus  a  grant  of  land  outside  the  state  of  testator's  domicile 
to  his  sister-in-law  and  her  "heirs"  was  held  to  be  construed 
by  the  law  of  the  domicile  of  testator.  In  this  case  the  law  of 
testator's  domicile  made  the  husband  of  the  beneficiary  her 
"heir,"  while  by  the  law  of  the  place  where  the  land  was  sit- 
uated the  husband  was  not  her  "heir."  ^ 

So  a  devise  to  a  person  for,  life,  and  remainder  to  the  heirs 
of  his  body,  was  to  be  construed  by  the  law  of  testator's  domi- 
cile. In  this  case  testator  was  domiciled  in  Missouri,  and  the 
land  was  situated  in  Kansas.  The  life  tenant  died,  leaving 
a  son  born  illegitimate,  whom  he  had  recognized  as  his  o^vn 
son,  but  whose  mother  he  had  never  married.  In  Kansas  such 
child  would  be  thereby  rendered  legitimate;  in  Missouri  he 
would  not  be.  The  court  held  that  the  law  of  testator's  dom- 
icile must  govern,  and  that  the  illegitimate  child  could  not 
take  as  "heir"  of  life  tenant.^ °  In  this  case  it  was  said  that 
the  law  of  the  domicile,  prima  facie,  controlled  the  meaning 
of  thv.  words  used  in  the  will,  unless  the  circumstances  of  the 

TMcNicoll  V.  Ives,  59  O.  S.  401;  ;   18  So.  390;  Ford  v.  Ford,  70 

De  Wolf  V.  Middleton,  18  R.  I.  810.  Wis.  19;   72  Wis.  621. 

sKoith   V.   Eaton,   .58   Kan.    7.32;  o  Lincoln     v.     Perry,     149     Mass. 

Lincoln   v.    Perry,    149    Mass.    3G8 ;  3<i8 :     Morris    v.    Bolles,    65    Conn. 

Ford  V.  Ford,  80  Mich.  42:   Wash-  45. 

burn  V.   Van    Steenwyck,   32   Minn.  lo  Keith  v.  Eaton.  58  Kan.  732. 

336;     Adams    v.    Farley,    —    Miss. 


29 

LAW    OF    WILLS. 

testator  or  the  language  of  the  will  showed  otherwise,  or  the 
law  of  the  state  where  the  will  was  oifered  for  prohate  and 
record  contravened  such  use  of  language. 

§30.     Statutory  rule  as  to  law  controlling. 

The  rule  that  a  devise  of  land  is  controlled  as  to  form, 
capacity  of  testator,  and  the  like,  by  the  /.:.  rei  sitae  \...  often 
resulted  in  intestacy.  If  a  testator  has  any  knowledge  of  the 
formalities  of  executing  a  will  his  knowledge  is  generally 
confined  to  the  law  of  his  own  domicile,  and  his  will  is  exe- 
cuted in  accordance  with  such  law.  It  may  not  even  be  pos- 
sible to  obtain  legal  advice  as  to  the  formalities  necessary,  by 
the  laws  of  some  remote  country,  to  the  validity  of  a  devise 
of  land  situate  there. 

For  these  reasons  many  states  have  modified  the  common  law 
rule  as  to  which  law  controls  a  will  passing  real  property,  and 
have  made  it  analogous  to  the  rule  on  the  subject  of  testaments 
of  personalty  by  providing  that  if  the  will  of  decedent  is  ya^id 
by  the  law  of  the  jurisdiction  where  he  was  domiciled  at  the 
time  of  his  death  it  shall  be  valid  to  pass  land  any^diere. 

§31.     General  rule  as  to  personalty. 

The  validity  of  a  testament  bequeathing  personal  property 
is  to  be  determined  by  the  law  of  testator's  domicile  at  the 
time  of  his  death-the  lex  domicilii}^  The  law  thus  applied 
is  the  law  in  force  at  the  time  of  testator's  death,  and  nosub- 
sequent  change,  even  if  valid  by  the  law  of  testator  s  domicde, 

11  Lyon    V     O^den,    85    Me.    374;       sion,  4.5  La.   Ann.   12.37:    Crusoe  v. 

11  Lyon   V     u«       ,  ^^^    ^^.^^     ^.^^.    j,,,,,,,,^   y. 

Green    v.    Alden,    9.    Me.  ^^^^^^^  ^^^^^^^^  ^^  ^   ^   ^    ^^4.  3^ 

^^j     20s :    Rosenbaum    v.    Garnett, 
i2Aganoor's  Irust,   13  Lq.  Gu,       Ati.  ^_^^ 

Goods    of     Brown-Sequard,     C,     Hep.  .5.     ^.    J-    i^_i«'' 

oi.  1         ^Q  T    T   TJpTi  Daniniert  v.  Osboin,  141  im.   i-  •'"•«> 

565;  Stokes  v.  Stokes,  <8  L.  T.  Kep.  J  ami.  pi,..,i,berlain    43  N. 

rn     P7  ^      T    P    D    &    \    N-   S.  55;  Cluwiberlam  v.  Chamberlain,  ■*i 
50;   67  L.  J    P.  IX  ^  A^  ^,    „^^,,,,   g    Ohio 

Siokles    V     New    Orleans,    «U    rea.  i..   ■*-■»•  i  o    n     «? 

8  S     06   C    C    A.   204:   Handley  v.  144;    Mannel   v.   Mannel,    13    0.    S^ 

pllnie;!  Ol'  Fed.  948;  Yore  v.  Cook,  458:    Fit.simmons    v.    Johnson,    90 

67    111.   App.   586;    Gaines's    Succcs-  Tenn.  416. 


30  LAW    or    WILLS. 

will  be  recognized  by  other  courts.-^  ^  This  rule  applies  to  the 
capacity  of  testator  and  the  form  of  the  will.^'* 

A  holographic  will  made  in  New  York  by  one  domiciled  in 
Quebec  while  on  a  short  visit  to  New  York  is  valid  where  in 
compliance  with  Quebec  law.-^^  And  on  the  other  hand,  a 
holographic  will  made  in  Louisiana  by  one  domiciled  in  Ohio 
while  on  a  visit  to  Louisiana  is  invalid  where  not  permitted 
by  Ohio  law,^^ 

So  questions  of  construction  are  controlled  by  the  law  of  tes- 
tator's domicile.-^ '^ 

When  testator  devised  property  to  the  heirs  of  a  named  per- 
son it  was  held  that  the  law  of  testator's  domicile  and  not  the 
law  of  the  domicile  of  this  named  person  should  govern.^  ^  So 
where  a  testator  by  will  gave  a  legacy  to  a  charitable  institu- 
tion it  was  held  that  the  law  of  his  domicile  governed  as  to 
the  length  of  time  that  must  elapse  between  the  execution  of 
such  will  and  the  death  of  testator  in  order  to  make  it  a  valid 
will,  even  though  the  legacy  could  have  been  paid  only  by  sell- 
ing land  in  another  state.^^  Thus,  where  a  state  statute  forbade 
testator  to  dispose  by  will  of  more  than  half  of  his  property 
to  charity,  it  was  held  that  such  statute  had  no  application 
where  a  non-resident  made  a  bequest  to  a  corj)oration  in  that 
state.20 

A  trust  of  personalty  created  for  the  benefit  of  a  married 
woman  is  governed  by  the  law  of  testator's  domicile.^^ 

13  Aganoor's  Trust,  13  Rep.  677.  192;    Adams   v.   Farley     (Miss.)    18 

14  Stokes  V.  Stokes,  78  L.  T.  Rep.  So.  390;  Jenkins  v.  Trust  Company, 
50;  67  L.  J.  P.  D.  &  A.  N.  S.  55;  53  N.  J.  Eq.  194;  32  Atl.  208;  Ro 
Ross  V.  Ross,  25  Can.  S.  C.  307;  senbaum  v.  Garrett,  57  N.  J.  Eq 
Sickles  V.  New  Orleans,  80  Fed.  186;  Osborne  v.  Dammert,  140  N.  Y 
868 ;  26  C.  C.  A.  204 ;  Handley  v.  30 ;  Dammert  v.  Osborne,  141  N.  Y 
Palmer,  91  Fed.  Rep.  948;  Cham-  564;  Crandell  v.  Barker,  8  N.  D 
bcrlain  v.  Chamberlain,  43  N.  Y.  263;  Knox  v.  Barker,  8  N.  D.  272 
424.  18  Proctor  v.  Clark,  154  Mass.  45; 

13  Ross  V.  Ross,  25  Can.  S.  C.  R.  12  L.  R.  A.  721. 

307.     To  the  same  effect  is   Stokes  lo  Jenkins  v..  Trust  Co.,  53  N.  J. 

V.   Stokes,   78   Law.   T.   Rep.   50;    67  Eq.   194;    so   Carter  v.  Presbyterian 

L.    J.    P.    D.    and    A.    X.    S.    55.  Church,  68  Hun,  435. 

10  Manuel  v.  Manuel,  13  0.  S.  458.  20  Healy  v.  Read,  153  Mass.  197; 

17  Kain   v.    Gibboney,    101    U.    S.  10  L.  R.  A.  766. 

362;  Harrison  v.  Nixon,  6  Pet.    (U.  21  Rosenbaum    v.    Garrett,    57    N. 

S.)  483;  Whitney  v.  Dodge,  105  Cal.  J.  Eq.  186. 


LAW     OF     WILLS.  'Si 

§32.     Effect  of  change  of  domicile. 

Where  testator  possessed  capacity  by  the  law  of  his  domicile 
at  the  time  he  made  his  will,  and  made  it  in  a  form  there  valid 
bj  law,  and  afterwards  removes  into  another  jurisdiction, 
where  he  either  does  not  possess  capacity^^  or  by  whose  law  his 
will  is  not  executed  properly,^^  and  retains  his  domicile  there 
until  his  death,  his  will  is  controlled  by  the  law  of  his  later 
domicile,  and  is  held  to  be  invalid.  So  where  the  consent  of  a 
husband  to  the  will  made  by  his  wife  was  binding  where  made, 
but  not  binding  by  the  law  of  the  wife's  domicile  at  her  death, 
it  was  held  that  the  law  of  her  domicile  at  her  death  controlled 
and  he  was  not  bound  by  his  assent  to  that  will.-^ 

§33.     Distinction  between  realty  and  personalty. 

A  leasehold  estate  is,  of  course,  personal  property,  and  a 
bequest  thereof  is  controlled  by  the  law  of  the  domicile  of 
testator.^^  The  law  of  testator's  domicile  controls  as  to  be- 
quests of  personalty,  even  where  it  becomes  necessary  to  sell 
testator's  realty  to  pay  the  legacies.^^ 

§34.     Law  controlling  in  conversion. 

While  the  law  of  the  place  where  the  realty  is  situated 
determines  whether  testator's  will  effects  an  equitable  conver- 
sion of  realty  into  personalty ,2"  yet  if  it  has  this  effect  the 
law  of  testator's  domicile  controls  as  to  the  validity  of  his 
bequests  of  such  property,  treated  by  the  doctrine  of  conversion 
as  personalty.^^ 

22  Shute  V.  Sargent,  G7  N.  H.  305.  "    Guaranty  Trust  Co.  v.  Maxwell,  — 

23  Nat  V.  Coons,  10  Mo.  54,3;  Mc-  N.  J.  Eq.  — ;  30  Atl.  339;  White 
Cune  V.  House,  8  Ohio  144.        »  v.   Howard,   46   N.   Y.    144;    Page's 

2-t  Shute  V.  Sargent,  67  N.  H.  305.  Estate,  75  Pa.  St.  87^ 

25  Despard  v.  Churchill,  53  N.  Y.  28  Lincoln  v.  Perry,  149  Mass. 
192.  368;    Codman   v.    Krell,    152    Mass. 

26  Jenkins  v.  Trust  Company,  53  214;  Proctor  v.  Clark,  154  Mass. 
N.  J.  Eq.  194;  Carter  v.  Presbyte-  45;  Penfield  v.  Towne.  1  N.  Dak. 
rian  Church,  68  Hun,  435.  216;  Tonnele  v.  Zabriskie,  51  N.  J. 

27  Clarke's  Appeal,  70  Conn.  195;  Eq.  557. 
Penfield  v.   Tower,    1   N.   Dak.  216; 


32 


LAW     OF     WILLS. 


§35.     Law  controlling  in  trusts. 

Where  a  devise  of  land  creates  a  trust  its  validity  is  to  be 
determined  by  the  law  of  the  place  where  the  land  is  situated.^® 

Where  a  bequest  of  personalty  creates  a  trust  its  validity  is 
primarily  to  be  determined  by  the  law  of  the  domicile  of  testa- 
tor, and  not  the  law  of  the  place  where  the  property  is  situate.^*^ 
So  where  a  trust  is  valid  by  the  law  of  testator's  domicile  it 
will  not  be  rendered  invalid  by  the  fact  that  the  trustee,  the 
property,  and  many  of  the  beneficiaries  are  in  a  state  where  such 
trust  is  invalid  as  in  violation  of  the  rule  against  perpetuities.^^ 

Where  the  trust  may  be  executed  in  testator's  domicile  in 
compliance  with  the  law  there,  a  trustee  can  not  make  the  trust 
unenforceable  by  withdrawing  with  the  trust  funds  to  another 
state  where  such  trust  is  void  as  in  unlawful  restraint  of 
alienation.^2  There  are,  however,  two  qualifications  to  this 
doctrine. 

First,  where  the  personal  property  is  situated  in  the  ju- 
risdiction of  testator's'  domicile,  and  the  testament  directs  that 
the  proceeds  be  transmitted  to  another  jurisdiction,  and  there 
applied  to  a  trust,  the  courts  of  testator's  domicile  often  give 
effect  to  such  testament  when  the  trust  is  la^^^ul  by  the  law  of 
the  jurisdiction  where  it  is  to  be  perfonucd,  though  it  could  not 
be  enforced  in  the  jurisdiction  of  testator's  domicile.-^^ 


29  Ford  V.  Ford,  80  Mich.  42; 
44  N.  W.  1057. 

30  Canterbury  v.  Wyburn  (1895) 
A.  C.  89;  64  L.  J.  P.  C.  (N.  S.) 
36;  Whitney  v.  Dodge,  105  Cal.  192  : 
Penfield  v.  Tower,  1  N.  Dak.  216; 
Despard  v.  Churchill,  53  N.  Y.  192; 
Osborn  v.  Dammert,  140  N.  Y.  30; 
Dammert  v.  Osborn,  141  N.  Y.  564; 
Cross  V.  U.  S;  Trust  Co.,  131  N.  Y. 
330:  15  L.  R.  A.  606;  Rosonbaum  v. 
Garrett,  57  N.  J.  Eq.  186;  41  Atl. 
252. 

31  Cross  V.  U.  S.  Trust  Co.,  131 
N.  Y.  330;    15  L.  R.  A.   606. 


32  Whitney  v.  Dodge,  105  Cal. 
192. 

33  Hope  V.  Brewer,  136  N.  Y.  126; 
18  L.  R.  A.  458,  following  Cham- 
berlain V.  Chamberlain,  43  N.  Y. 
424 ;  Despard  v.  Churchill,  53  N.  Y. 
192 ;  In  re  PIuss,  126  N.  Y.  537,  and 
distinguishing  Bascom  v.  Albertson, 
34  N.  Y.  587,  as  being  a  case  in 
which  it  did  not  appear  that  the 
trustees  could  take  under  the  law 
of  their  jurisdiction. 


LAW     OF     WILLS.  *^ 


Second,  that  where  a  will  directs  that  specific  funds  be  re- 
moved to  another  state,  and  there  administered,  the  validity 
of  such  bequest  is  to  be  determined  by  the  law  of  such  other 
state,'^-*  thouiiii  the  general  rule  is  that  such  other  state  will 
follow  the  lex  domicilii. 

So  where  a  testator  directs  that  certain  funds  be  sent  to  an- 
other jurisdiction,  and  there  delivered  to  a  corporation  not  yet 
created,  the  validity  of  such  gift  is  determined  by  the  law  of 
the  jurisdiction  to  which  such  funds  arc  to  be  sent.^^  Hence, 
where  personalty  thus  bequeathed  is  situate  in  a  jurisdiction 
other  than  that  of  testator's  domicile,  the  court  will  enforce 
such  bequests  as  are  in  conformity  with  the  law  of  testator's 
domicile,  provided  they  do  not  also  conflict  with  the  law  of  the 
state  in  which  such  property  is  situated.  If  in  conflict  with 
such  law  the  property  or  the  proceeds  thereof  will  be  trans- 
mitted to  the  executor  in  the  state  of  testator's  domicile  for 
distribution  under  such  law  and  the  will.^^ 

So  in  case  of  a  conflict  of  laws  as  to  the  rule  of  perpetuities 
the  law  of  testator's  domicile  governs  as  to  trusts  of  person- 
alty,=^'^  but  where  the  trust  is  of  realty  the  law  of  the  juris- 
-dietion  where  the  realty  is  situate  controls.^^ 

§36.     Law  controlling  as  to  capacity  of  beneficiary  to  take. 

In  manv  states  a  limit  is  placed  to  the  amount  of  property 
which  can  be  held  by  a  corporation  incorporated  under  the 
laws  of  such  states.  Where  such  laws  exist,  and  a  devise  is 
made  of  lands  situate  in  one  state  to  a  corporation  incorpo- 
rated under  the  laws  of  another  state,  which  corporation  al- 
readv  holds  property  to  the  full  limit  allowed  by  the  laws  of 
the  state  of  its  creation,  a  question  arises  as  to  the  effect  ot 
such  devise.     In  some  states  it  is' held  that  as  the  corporation 

34  Sickles  V.  New  Orleans,  80  Fed.  36  Dammert  v.  Osborn,  141  N.  Y. 

Rep.  8G8:  Chamberlain  v.  Chamber-       564. 

lain,  43  N.  Y.  424;  Jenkins  v.  Trust  3.  Whitney    v.    Dodge,    105    Cal. 

&   Safe   Deposit   Co.,   53   N.   J.   Eq.       102;  Dammert  v.  Osborn,  140  N.  Y. 

30;    141   N.  Y.  564. 


186 


■  .         r»  1  ..,.„    1  dO  "NT    Y  3s  Ford   v.  Ford,  80  Mich.  42:   44 

35  Dammert  v.  Osborn,  i4U  jn.   x.  >  "■  >  ' 

30;   141  N.  Y.  504.  N.   W.   1057. 


34  LAW     OF     WILLS. 

has  no  power  to  take  the  property,  the  devise  is  a  nullity,  and 
the  property  passes  to  the  residuary  devisee  or  to  the  h^irs.^^ 

On  the  same  theory  a  bequest  of  personalty  to  a  "commu- 
nity" in  a  foreign  country  was  held  to  depend  upon  the  ca- 
pacity of  the  community  to  take  under  the  laws  of  such 
country,^  *^ 

In  other  jurisdictions  the  devise  is  held  to  be  valid,  on  the 
theory  that  the  question  of  the  power  of  the  corporation  to 
hold  the  land  is  not  a  question  that  can  be  raised  by  the  heirs 
or  devisees,  but  only  by  the  state  under  whose  laws  the  corpora 
tion  is  incorporated.^^ 

In  England  the  statutes  of  mortmain  are  held  to  be  local 
in  their  effect  and  not  to  apply  to  wills  of  persons  domiciled 
outside  of  England.^^ 

§37.     Law  controlling  as  to  lapse. 

Some  jurisdictions  hold  that  the  question  whether  a  given 
legacy  has  lapsed  or  not  is  to  be  determined  by  the  law  of  the 
domicile  of  the  legatee.^^ 

39  starkweather  v.   Bible   Society,  a  vain  thing  in  handing  it  over  to 

72   111.    50 ;    Congregational    Society  the  corporation,  which  by  the  very 

V.   Halcj   51   N.   Y.   Supp.   704;   Mc-  fact  of  holding  would  render  itself 

Graw's     Estate,     111     N.     Y.     66;  liable  to  have  its  charter  forfeited 

DeCamp   v.   Dobbins,   31   N.   J.   Eq.  on  that  account?     Would  not  pro- 

671;    House  of  Mercy  v.   Davidson,  hibition  against  holding  be  properly 

90  Tex.  529.  and  necessarily  construed  as  a  pro- 

"The  will  does  not  take  effect  un-  hibition  against  taking  also?" 

til   the  testator's   death;    and  then,  McGraw's   Estate,    111   N.   Y.   66, 

if  his  property  is  not  legally  devised  quoted    and    followed    in    House    of 

or  bequeathed,  no  title  vests  for  a  Mercy  v.   Davidson,   90  Tex.   529. 

single  moment  in  the  devisee  or  leg-  ^o  in  re  Huss,  126  N.  Y.  537;   12 

atee,   but  it  vests   instantly  in   the  L.   R.   A.   620. 

heir  or  next  of   kin;    and   the  cor-  4i  Jones  v.  Habersham,  107  U.  S. 

poration    claiming    imdcr    the    will  174;    Stickney's    Will,    85    Md.    79; 

asks  the  aid  of  the  law  to  give  the  35  L.  R.  A.  693 ;   Hanson  v.  Little 

property  to  it,  and  in  doing  so  must  Sisters  of  the  Poor,   79  Md.  434. 

Bhow  the  authority  it  has  to  take.  42  Canterbury  v.  Wyburn     (1895) 

And   if  there  were  only  a  prohibi-  App.  Rep.  89;  11  Rep.  331. 

tion   in   words   against  holding   the  43  Lowndes  v.  Cooch,  87  Md.  478. 
property  would  the  law  not  be  doing 


LAW    OF    WILLS. 


35 


§38.     Law  controlling  as  to  election. 

The  law  of  the  domicile  controls  as  to  questions  of  election.*^ 

§39.     Law  controlling  as  to  powers. 

In  determining  the  validity  of  the  execution  of  a  power  given 
by  will  the  law  of  the  domicile  of  the  donor  of  the  power  con- 
trols, in  the  absence  of  statute.^^ 

In  England,  by  statute,  a  power  exercisible  by  will  is  properly 
executed  if  in  accordance  with  English  law,  irrespective  of  the 
law  of  testator's  domicile.^^ 

§40.     Law  controlling  contracts  to  make  a  will. 

The  validity  of  a  contract  to  make  a  designated  person  tes- 
tator's heir  is  controlled  by  the  law  of  the  place  where  the  land 
alleged  to  be  affected  by  such  contract  is  situate."*^ 

The  method  of  proving  the  contract,  as  affected  by  the  Stat- 
ute of  Frauds,  is  controlled  by  the  law  of  the  forum.'** 

§41..    Eule  in  absence  of  evidence  as  to  what  law  of  domicile  is. 

When  no  evidence  is  given  as  to  what  the  law  of  the  domicile 
is,  the  court  trying  the  case  will  take  judicial  notice  that  the 
state  of  testator's  domicile  recognizes  the  common  law  as  the 
basis  of  its  system,  if  such  be  the  case,  and  will  construe  the  will 
by  the  common  law.^^  If  the  law  of  the  state  of  testator's 
domicile  is  not  based  upon  the  common  law  the  court  will,  in 
the  absence  of  evidence  as  to  what  such  foreign  law  is,  treat 
the  will  as  controlled  by  the  law  of  the  forum.^^ 

44  Boiling  V.   Bollinp.  88  Va.  524.  47  Long  v.  Iless,  154  Til.  482;   27 

45  Tatnall  v.  Hankey,  2  Moore  P.  L-  K.  A.  791 ;  Fuss  v.  Fuss,  24  Wis. 
C.  342;  In  re  Alexander,  6  Jur.  N.       25G;   1  Am.  Rep.  180. 

S.  354;  /n  re  Baldwin,  76  L.  T.  Rep.  4s  Emer.y  v.    Burbank,   lfi3   Mass. 

462 :  66  T.  J.  Ch.  N.  S.  524 ;  Sewall       326 ;  39  N.  E.  1026. 

V,    Wilmer,    1.32    Mass.    131;    Bing-  49  Benbow  v.  Moore,   114  X.   Car. 

ham's  Appeal,  64  Pa.  St.  345;  Cot-       263:   19  S.  E.  156. 

ting  V.  De   Sartiges,  17  R.   I.   668 ;  so  Davison  v.  Gibson,  56  Fed.  443. 

16  L.  R.  A.  367. 

46  Goods   of   Huber    (1896)    Prob. 
209. 


36  LAW    OF    WILLS. 


CHAPTER   V. 

THE  INHERENT  ELEMENTS  OF  A  WILL. 
§42.     Classification  of  elements  into  inherent  and  extrinsic. 

In  American  and  English  law  the  Will  is  as  distinct  a  legal 
concept  as  the  Contract  or  the  Deed,  It  possesses  certain  well- 
defined  elements  which  characterize  it  and  which  distinguish 
it  from  other  legal  concepts. 

For  convenience  in  discussing  them  these  elements  may  be 
roughly  grouped  into  two  classes,  the  extrinsic  elements  and 
the  inherent  elements.  This  distinction  is  not  made  by  the 
courts,  but  is  one  to  which  attention  should  be  paid,  as  it  is  a 
natural  and  not  an  arbitrary  one. 

The  extrinsic  elements  of  a  will  are  those  which  may  be 
modified  without  changing  the  fundamental  idea  of  a  will  or  its 
place  in  our  law.  They  refer  to  the  set  form  in  which  a  will 
must  by  law  be  cast,  such  as  signature  by  testator  and  at- 
testation by  witnesses.  In  the  actual  practice  these  elements 
are  of  very  great  importance,  as  they  determine  the  validity  of 
the  particular  will.  A  will  with  but  one  witness  where  the 
law  requires  two  is  of  no  force  or  effect.  But  the  law  could 
be  altered  so  as  to  require  two  witnesses  or  one  or  more  with- 
out changing  the  position  of  the  will  at  law  or  its  essential 
nature.  Hence  these  elements  are  here  called  extrinsic.  They 
are  now  in  almost  every  jurisdiction,  created  and  controlled  by 


LAW     OF     WILLS.  "* 

Statute.  A  full  and  complete  discussion  of  them  will  be  given 
in  subsequent  chapters.^ 

The  inherent  elements  of  a  will  are  those  which  can  not  be 
altered  without  destroying  our  very  idea  of  the  will  and  en- 
tirely altering  its  place  in  our  law.  For  instance,  a  funda- 
mental idea  of  a  will  is  that  it  passes  no  vested  interest  in 
property  until  the  death  of  the  testator.-  If  this  were  changed 
by  statute  and  it  were  made  the  law  that  on  due  execution  of  a 
will  the  beneficaries  named  therein  at  once  acquired  an  inter- 
est in  the  property  devised  the  instrument  might  still  be  called 
a  will,  but  it  would  cease  to  be  the  kind  of  instrument  that  we 
now  call  by  that  name. 

In  connection  with  the  general  discussion  of  the  inherent 
elements  of  a  will,  joint  and  mutual  wills  and  contracts  to  make 
a  will  will  be  considered  in  the  two  chapters  following  this. 
Joint  and  mutual  wills  are  discussed  in  this  connection  because 
the  only  question  of  importance  arising  on  that  subject  and  not 
included  under  the  general  law  of  wills  is  whether  from  the 
inherent  nature  of  the  will  a  joint  or  mutual  will  is  possible. 
Contracts  to  make  a  will  are  also  considered  because  in  spite 
of  outward  differences  a  contract  to  make  a  will  is  under 
certain  circumstances  treated  as  a  will  in  equity. 

§43.     Origin  and  classes  of  inherent  elements. 

The  inherent  elements  of  the  will  originate  in  the  principles 
of  the  common  law,  which  principles  have,  in  some  states,  been 
put  into  statutory  form.  They  are  to  be  grouped  under  two 
general  heads,  in  accordance  with  the  classification  and  nomen- 
clature used  by  the  courts. 

(1)  The  animus  testandi. 

(2)  Eevocability. 

1  See  Chapter  XII.  Collefj;e  v.  Merritt,  To  Fed.  4S0 ;  An- 

2  President,      etc.,      of      Bowdoin       drews  v.  Andrews,  122  X.  Car.  352. 


88  LAW     OF     WILLS. 

§44.     Animus  testandi  not  dependent  on  use  of  word  "will." 

The  animus  testandi,  or  intention  of  making  testamentary 
disposition,  is  an  expression  of  very  wide  import,  and  sums  up 
a  number  of  elements.  Before  analyzing  these  elements  a  short 
discussion  of  the  term  is  necessary. 

It  does  not  necessarily  mean  that  the  word  "will"  or  "testa- 
ment" must  be  used  in  the  transaction.  A  man  may  make  his 
will  animo  testandi,  though  he  is  so  ignorant  of  law  that  he 
thinks  it  is  called  a  deed  or  a  contract,  or  though  he  does  not 
know  what  to  call  it.  The  test  is  not  what  he  thinks  is  the 
legal  name  of  the  instrument  which  he  is  executing,  but  what 
the  law  calls  it,  in  view  of  its  nature,  and  of  the  real  intention 
of  the  maker  as  deduced  from  the  instrument  and  from  all  the 
facts  and  circumstances.^ 

This  statement  is  not  in  accord  with  some  obiter  in  some  of 
the  cases  cited  below,  in  which  the  view  is  expressed  that  the 
testator  must  know  that  the  instrument  is  a  will  in  order  to 
make  a  valid  will.  However,  nothing  in  the  actual  decisions  is 
at  variance  with  the  views  expressed  in  the  text.^ 

So  testator's  opinion  that  the  addition  of  a  seal  was  necessary 
to  the  validity  of  the  instrument  does  not  prevent  it  from  being 
.a  will,  although  testator  evidently  thought  that  it  was  a  deed,^ 


3  Knight  V.  Tripp,  —  Cal.  — ;  231,  and  oft  repeated  that  the  true 
49  Pac.  838;  Stumpenhausen's  Es-  test  of  the  character  of  an  instru- 
tate,  108  lo.  555;  79  N.  W.  376;  ntient  is  not  the  testator's  realization 
Smith  V.  Holden,  58  Kan.  535;  that  it  is  a  will,  but  his  intention 
Simon  v.  Wildt,  84  Ky.  157;  In  re  to  create  a  revocable  disposition  of 
Lautenshhager.  80  Mich.  285:  Caw-  his  property  to  accrue  and  talce 
ley's  Appeal.  13G  Pa.  St.  628  :  Grand  effect  only  upon  his  death,  and  pass- 
Fountain,  U.  0.  T.  R.  V.  Wilson,  96  ing  no  present  interest."  Nichols  v. 
Va.  594:  32  S.  E.  48;  Lauck  v.  Emery,  109  Cal.  323. 
Logan,  45  W.  Va.  251.  *  In    re    Wood's    Estate,    36    Cal. 

"It  is  immaterial  whether  he  calls  75;  Toeble  v.  Williams,  80  Ky.  661 ; 

it  a  will  or  a  deed;  the  instrument  Swett   v.    Boardman,    1    Mass.   257; 

will  have  operation  according  to  its  V.'^aite    v.    Frisbie,    48    Minn.    420; 

legal  effect."  Wall  v.  Wall,  30  Miss.  Tabler  v.  Tabler,  62  Md.  601 ;  Combs 

<)\,  V.  Jolly,  3  N.  J.  Eq.  625;  Means  v. 

"It  is  undoubtedly  the  general  rule  Means,    5    Strob.     (S.    Car.)     167. 

enunciated   by   the   leading   case   of  s  Wuesthoff  v.  Gennania  Life  Ins. 

Habergham  v.   Vincent,   2   Ves.   Ju.  Co.,  107  N.  Y.  580. 


LAW     OF     WILLS.  ^^ 

and  the  fact  that  testator  thought  it  necessary  to  acknowledge 
and  file  his  will  and  cause  it  to  be  recorded  does  not  prevent 
it  from  being  his  will.*' 

Some  slight  qualification  of  this  statement  may  be  necessary 
in  jurisdictions  where  one  of  the  prescribed  formalities  of  the 
execution  of  the  will  is  publication,  or  a  declaration  by  the 
maker  to  the  witnesses  that  the  instrument  executed  is  the 
last  will  and  testament.  This  topic  is  discussed  under  "Pub- 
lication."'^ 

The  converse  of  this  proposition  is  true.  The  word  "will" 
is  not  conclusive  of  the  nature  of  tlie  instrument  or  of  the 
animus  testandl.  Thus,  where  the  instrument  provides  that 
A  gives,  devises  and  bequeaths  certain  real  property  to  his 
sons,  to  have  and  to  hold  to  them  and  their  heirs  forever,  and 
recites  that  the  instrument  is  given  in  consideration  of  a  con- 
tract by  these  sons  to  support  the  grantor  and  his  wife  during 
their  lives,  and  to  provide  for  their  funeral  after  their  death, 
it  was  held  not  to  be  in  law,  a  will,  although  it  concluded :  "I 
do  make  and  publish  this  as  my  last  will  and  testament,"  and 
was  executed  as  a  will.^ 

Tlie  animus  testandi,  then,  does  not  turn  on  the  presence  or 
absence  of  the  words  "will"  or  "testament,"  but  on  the  intention 
of  the  testator  as  shoA\Ti  by  the  nature  of  the  instrument  and 
the  surrounding  facts  and  circumstances. 

§45.     Animus  testandi. — What  wishes  are  testamentary. 

The  first  of  the  ideas  included  in  the  "animus  testandi"  is 
that  the  will  may  deal  with  any  or  all  of  three  things. 

(a)  It  may  deal  with  the  property  of  the  testator  either 
real  or  personal.^ 

(b)  It  may  appoint  an  executor  to  take  charge  of  the  estate 

oHawes  v.  Nicholas,  72  Tex.  4S1.  «  Comer    v.    Comer,    120    111.    420; 

7  See  Sees.  225-228.  Remington  v.  Bank,  7G  Md.  546. 

8  Ward  V.  Ward.  20  Ky.  L.  R. 
986:  48  S.  W.  411:  Swann.  Ex'or  v. 
Housman,  90  Va.  816. 


40 


LAW     OF     WILLS. 


of  the  testatx)r  and  deal  with  it  according  to  the  law  and  the 

will.i" 

(c)      It  may  appoint  a  guardian  for  the  minor  children  of 

testator.^  ^ 


§46.     Animus  testandi. — What  disposition  is  not  testamentary. 

Accordingly,  the  formal  expression  l)y  the  decedent  of  his 
wishes  as  to  any  matter  not  included  under  (a),  (b)  and  (c) 
of  the  preceding  section  is  not  a  will,  because  the  subject  mat- 
ter is  not  testamentary  in  its  character.  Thus  a  formal  revoca- 
tion in  writing  of  a  previously  made  will  is  not  itself  a  will/- 
nor  is  a  formal  expression  of  a  desire  that  a  certain  person 
should  take  care  of  decedent's  children  where  such  person  was 
not  appointed  guardian,^ ^  nor  a  request  to  the  probate  judge  to 
excuse  the  executor  of  decedent's  will  from  giving  bond,^^  nor 
an  expression  of  a  desire  for  cremation  as  a  method  of  burial.^ ^ 

An  instrument  by  which  the  maker  provided  that  his  son  A 
should  receive  no  share  of  his  estate,  and  made  no  further 
disposition  of  his  property,  was  held  not  to  be  a  will  and  not 
entitled  to  probate.^  ^ 


10  In  re  Hickman,  101  Cal.  609; 
In  re  John's  Will,  30  Ore.  494;  47 
Pac.  341;  Jolliffe  v.  Fanning,  10 
Rich.  186. 

11  Wardwell  v.  Wardwell,  9  Allen. 
(Mass.)  518;  Stringfellow  v.  Somer- 
ville.  95  Va.  701  ;  40  L.  R.  A.  623 
(directing  to  custody  and  education 
of  testatrix's  child,  and  appointing 
a  gvmrdian ) . 

12  Bayley  v.  Bailey,  5  Cush. 
(Mass.)  245.  (In  this  case  the  in- 
strument in  question  was,  "It  is  my 
wish  that  the  will  I  made  be  de- 
stroyed, and  my  estate  settled  ac- 
cording to  law."  As  it  was  duly 
executed  in  accordance  with  the  law 
of  testator's  domicile,  it  was  held  to 
be  a  valid  will.  The  court  said, 
however,   that   if   it  had   stopped   at 


the  word  "destroyed,"  it  would  not 
have  been  a  will. ) 

13  Williams  v.  Noland,  10  Tex. 
Civ.  App.  629;   32  S.  W.  328. 

14  Baker  v.  Baker,  51  O.  S.  217. 
15 /n  re  Meade's  Estate,  118  Cal. 

428,  citing  Sutherland  v.  Snydor,  84 
Va.  880;  McBride  v.  McBride,  26 
Gratt.  (Va.)  476;  /ji  re  Richardson, 
94  Cal.  63. 

16  Coffman  v.  Coffman,  85  Va.  459. 
(This  case  turned  upon  the  well- 
recogni/ed  legal  principle  hereafter 
discussed.  See  Sec.  467,  that  an  heir 
can  not  be  disinherited  by  mere  neg- 
ative words,  no  matter  how  strong, 
but  only  by  a  disposition  of  testa- 
tor's property,  which  leaves  nothing 
to  descend  to  the  heir. ) 


41 

LAW     OF     WILLS.  "" 


Where  decedent  left  an  instrument  which  divided  decedent's 
property  among  her  children,  like  a  will,  but  which  decedent 
had  commenced  with  the  words  ''This  is  not  meant  as  a  legal 
will,  but  as  a  guide,"  it  was  held  that  such  instrument  was  not 

a  wilU" 

Where  decedent  left  an  instrument  purporting  to  be  his 
last  will  and  testament,  but  which  was  only  the  formal  recog- 
niiion  of  certain  women  therein  named  as  his  legitimate 
daughters,  it  was  held  not  to  be  a  will.^^ 

Likewise  the  appointment  of  an  attorney  to  assist  the  executor 
in  settling  the  estate  is  not  a  testamentary  act.^* 

And  a  written  direction  that  upon  the  death  of  testatrix 
two  deeds  should  be  delivered  to  her  husband  was  held  not  to 
be  a  wilL2« 

§47.     Animus  testandi. — Reality  of  intention. 

The  second  idea  involved  is  that  the  instrument  must  express 
the  wishes  of  the  decedent  in  reality  as  well  as  in  outward  form. 
If  the  testator  lacks  the  mental  capacity  required  by  law  to 
make  a  will,  he  is  incapable  of  entertaining  the  intention  of 
making  a  will ;  and  an  instrument  in  form  of  a  will  executed  by 
such  a  person  has  no  validity  in  law.^^ 

So  if  testator  executes  an  instrument  in  the  form  of  a  Avill 
while  he  is  under  undue  influence  he  does  not  in  reality  have 
the  intention  of  making  a  will,  and  the  instrument  thus  exe- 
cuted is  a  nullity.^^ 

Apart  from  the  lack  of  capacity  and  undue  influence  the 
ordinary  rule  is  that  testator  knows  what  he  is  doing,  and 
executes  the  will  animo  testandi  A  presumption  therefore 
arises  that  if  testator  had  an  opportunity  of  knowing  the  con- 

17  Ferpuson-Davie  v.  Ferguson-  i^  Ogier's  Estate,  101  Cal.  381 ;  35 
Davie,  L.  K.  15  V.  &  D.  109.  Pac.  000.                         ,„,    ^  ,     -,„ 

18  Tn  re  Williamson's  Will,  6  Ohio  20  Young's  Estate.  123  Cal.  337. 
Dec.  505    (Prob.  Ct.)      Reversed  by  21  See  Chapter  VIII. 

Common  Pleas  Court,  6  N.  P.  79.  "  See  Chapter  IX. 


42  LAW     OF    WILLS. 

tents  of  his  will  he  did  in  fact  have  such  knowledge,  and  exe- 
cuted the  will -ammo  testandi.^^ 

It  need  not  be  shown  ordinarily  that  testator  actually  read 
the  will,  or  that  it  was  read  to  him.  His  assent  will  be  pre- 
sumed.^^  This  rule  has  been  applied  in  some  cases  where 
testator  was  illiterate.^^  But  in  perhaps  the  majority  of  cases 
where  the  record  has  presented  the  question  of  the  reality  of 
testator's  intention,  it  is  held  that  it  must  be  shown  affirmatively 
that  testator  knew  and  approved  of  the  contents  of  his  will 
where  he  is  illiterate,^^  or  where  the  will  is  written  in  a  foreign 
language,^'''  or  where  testator  is  very  weak,^^  or  dying. ^^ 

Affirmative  proof  that  testator  knew  the  contents  of  the  will 
has  been  required  when  the  will  was  not  in  his  handwriting.^'^ 
So  where  testator  was  able  to  communicate  his  wishes  only  by 
means  of  one  who  was  incompetent  to  testify  it  can  not  be  shown 
that  the  instrument  was  executed  animo  testandi.^^  The  pre- 
sumption that  a  testator  who  had  the  means  of  knowing  the  con- 
tents of  the  instrument  possesses  such  knowledge,  and  signs 
animo  testandi  may  be  rebutted.^^  If  he  signs  in  ignorance 
of  the  nature  of  the  instrument  he  does  not  execute  the  instru- 


23  Worthington     v.     Klemm,     144  28  Day  v.  Day,  2  Gr.  Ch.  549. 
Mass.  167;  Brick  v.  Brick,  17  Stew.  29  Hildreth  v.  Marshall,  51  N.  J. 
282;  Kahl  v.  Schober,  8  Stew.  461;  Eq.  241. 

Maxwell's  Will,  4  Hal.  Ch.  251 ;  Day  3o  Gerrish  v.  Nason,  22  Me.  438. 

V.  Day,  2  Gr.  Ch.  549 ;  Den  v.  John-  si  Potts    v.    House,     6     Ga.     324. 

son,  2  South.  454 ;   In  re  Cruin.b,  6  ( In  this  case  the  interpreter  was  x 

Dem.  478;  Black  v.  Ellis,  3  Hill,  S.  negro   who   under   the   law   then    in 

C.  68.  force  could  not  be  sworn.) 

24  See  cases  cited  in  preceding  32  Moyer  v.  Swygart,  125  111.  262. 
note.  (In  this  case  testator  began  a  will, 

25  Patton  V.  Hope,   10  Stew,  522.  and  provided  for  one  son  only.    He 

26  Day  V.  Day,  2  Gr,  Ch.  549 ;  intended  to  provide  for  his  other 
Lyons  v.  Van  Riper,  11  C.  E.  Gr.  children,  but  signed  the  will,  say- 
337 ;  Den  v.  Johnson,  2  South.  454;  ing  that  he  would  dispose  of  the  rest 
Harrison  v.  Rowan,  3  Wash.  C.  C.  of  his  property  later.  The  jury  found 
580 ;  Vandeveer's  Will,  6  C.  E.  Gr.  that  he  signed  without  the  intention 
501 ;  Rollwagen  v.  Rollwagen,  63  N.  of  executing  the  instrument  as  a  fi- 
Y.  504.  nality,  and  this  verdict  was  upheld 

27  Mittenberger  v.  Mittenberger,  by  the  courts.  The  record  also  con- 
78  Mo.  27 ;  8  Mo.  App.  306.  tains    evidence    of    undue    influence 

Contra,    Hoshauer    v.    Hoshauer,  and  lack  of  capacity,  however.) 
20  Pa.  St.  404;   Dickinson  v.  Dick- 
inson, 61  Pa.  St.  401. 


LAW     OF     WJILS. 


43 


ment  arwno  testandi,  aiid  it  is  not  his  will.^^  But  if  lie  knows 
the  nature  of  the  instrument  and  its  contents,  a  mistake  as  to 
the  extent  of  his  property  does  not  avoid  the  will,^^  nor  the  ac- 
cidental omission  of  an  intended  benei^.ciary.^^ 

It  has  been  laid  down  that  if  the  draughtsman  by  mistake 
omitted  a  material  clause,  the  will  is  avoided  if  testator  signs 
thinking  that  such  clause  is  a  part  of  his  will.^^  This  is  car- 
rying the  principle  past  the  verge  of  safety,  at  least  where  testa- 
tor may  be  presumed  to  be  acquainted  with  the  contents  of  his 
will.  Almost  any  will  might  be  overthrown,  no  matter  what 
testator's  actual  precautions,  if  this  principle  is  admitted  as 
sound. 

Where  testator  gave  instructions  for  drawing  his  will,  but 
before  it  was  completed  he  became  unconscious,  the  draft  thus 
made  was  not  his  will,  as  the  animus  testandi  was  lacking  to 
that  instrument.^'^ 

The  intention  to  make  a  will  may  be  lacking  where  testator 
executes  the  instrument  in  question  by  mistake  for  another.-"'^ 
Where  testator  executes  an  instrument  with  full  knowledge  of 
its  contents,  but  as  a  model  or  as  a  jest,^^  the  intention  to  make 
a  will  is  lacking,  and  the  instrument  is  not  a  will. 

The  question  is  sometimes  presented,  where  the  statute  r€^ 
quires  less  formality  for  testaments  of  personalty  than  for 
wills,  and  a  testator  executes  an  instrument  passing  realty  and 
personalty,  so  as  to  comply  with  the  requirements  of  the  law  as 
to  testaments,  but  not  as  to  wills,  as  to  the  validity  of  such  in- 
strument as  a  testament.     In  such  cases  the  tendency  of  judi- 

33  Jenness  v.   Hazelton,   58   N.  H.  were  too  weak  to  sij^n.     The  animus 

423  testandi  alone  was  lacking.) 

34jenness  v.   Hazelton,   58   N.  H.  38  Goods   of   Hunt,   L.   R.    3   P.   & 

493  D.    250:    Hildreth    v.    Marshall,    51 

^5  Jn  re  Forbes,  128  X.  Y.  r,40 ;  60  N.  J.  Eq.  241 ;  Baker  v.  Baker,  102 

Hun,   171.          .  Wis.  220;   78  N.  W.  45.3. 

36  Saunders   v.    Stiles,   2   Redf.    1.  so  Nioholls  v.  Nicholls,  2  Phillim.. 

37  Aurand  v.  Wilt,  9  Pa.   St.   54.  180 ;  Lister  v.  Smith,  3  Sw.  Tr.  282 : 
(Under    the    statute   then    in   force  Sewell  v.  Slin-luflf   (obiter),  57  Md. 
the  attesting  witnesses  were  not  re-  537 :    Sweet   v.    Boardnian.    1    Mass. 
quired  to  sign,  and  testator's  signa-  258 ;    Barber's  Will,  92  Hun.  489. 
ture  might  be  dispensed  with  if  he 


44  LAW     OF     WILLS. 

cial  opinion  is  to  treat  the  instrument  as  a  valid  testament 
wherever  possible  if  the  evidence  shows  that  the  instrument  was 
meant  as  a  finality.^^ 

§48.     Animus    testandi. — Expression    of    intention    in    definite 
terms. 

The  intention  of  testator  to  make  a  testamentary  disposition 
of  his  property,  or  to  appoint  an  executor  or  a  testamentary 
guardian,  must  be  expressed  in  such  terms  that  the  court  can, 
without  resort  to  conjecture,  determine  what  was  his  wish. 

Both  the  thing  given  and  the  person  to  whom  it  is  given  must, 
in  testamentary  dispositions  of  property,  be  set  forth  with  suf- 
ficient certainty.^  ^ 

In  a  recent  Pennsylvania  case  testator  put  a  number  of 
valuable  securities  in  envelopes,  which  he  placed  in  a  box. 
Upon  the  envelopes  he  wrote  names  of  certain  persons,  or 
directions  that  they  were  to  go  to  certain  named  persons. 
None  of  these  were  signed.  On  the  outside  of  the  box  was  a 
direction  that  it  was  to  go  to  his  attorney  in  case  of  his  death. 
On  another  box  full  of  silverware,  jewelry,  etc.,  he  wrote  "chil- 
dren, this  is  my  will,"  and  signed  it.  It  was  held  that  neither 
of  these  writings  was  testamentary  in  character.'*^ 

So  an  envelope,  on  one  side  of  which  was  written  a  list  of 
debts  due  the  writer,  and  on  the  other  side,  "These  notes  to  go 
to  my  wife,"  was  held  not  to  be  a  will,  since  it  did  not  appear 
what  notes  were  meant.  In  this  case  it  was  clear  that  "these 
notes"  referred  to  notes  once  in  the  envelope,  and  not  to  the 
list  of  claims.'^^ 

Writing  the  name  of  testator's  child  on  one  of  the  shares 

40  Orgain  V.  Irvine,  100  Tenn.  193.  Estate,    188    Pa.    St.    374:    Jacoby's 

4iHandlcy    v.     Palmer,    91     Fed.  Estate.  190  Pa.  St.  382;  Whitesides 

948 ;   In  re  Richardson,  94  Cal.  65 ;  v.  Wliitcsides,  28  S.  Car.  325 ;  Pack 

15  L.  R.  A,  635:  Dennis  v.  Holsap-  v.   Shanklin,  43  W.  Va.   304. 

pie,   148  Ind.  297  ;   Youn^  v.  Work,  *"-  Jacoby's    Estate,    190    Pa.    St. 

76  Miss.  829;    Shaffer's  Succession,  382. 

50    La.    Ann.    601:     Lippencott    v.  43  Shaffer's     Succession,     50     La. 

Davis,   N.   J.    (1894),   28   Atl.   587;  Ann.  601. 

Cope  V.  Cop6.  45  O.  S.  464 :  Gaston's 


LAW    OF    WILLS.  45 

marked  off  in  a  diagram  of  testator's  property,  which  was  made 
a  pare  of  the  will,  is  not  a  gift  of  such  share  to  such  child.^'* 

Upon  a  piece  of  paper,  written  and  signed  by  decedent,  were 
the  words  ''Want  wife's  relatives  to  have  all  property."  It 
was  held  that  this  was  not  a  valid  will.^^ 

A  rough  memorandum  which  discloses  testamentary  intent 
is  good,  though  extrinsic  evidence  may  be  necessary  to  identify 
the  beneficiaries  and  the  subject-matter.'*® 

To  what  extent  the  ordinary  rules  of  construction  will  serve 
to  reconcile  apparently  contradictory  provisions  and  bring  sense 
out  of  apparent  incoherency,  and  to  what  extent  extrinsic  evi- 
dence is  admissible  to  show  what  testator's  intention  really  was, 
are  questions  discussed  elsewhere.  It  is  sufficient  here  to  say 
that  if  the  will,  when  helped  by  all  the  recognized  rules  of  con- 
struction, and  when  supplemented  by  all  the  extrinsic  evidence 
admissible,  does  not  show  any  clear  and  definite  intention  of 
testator,  either  as  to  his  entire  scheme  of  disposition  or  as  to 
each  separate  item,  the  court,  however  reluctant  it  may  be,  has 
no  choice  but  to  declare  the  will  as  a  whole  void  for  uncer- 
tainty,'*''' and  the  property  of  testator  must  be  distributed  with- 
out regard  to  such  instrument. 

§49.     Animus   testandi. — Intention   that   instrument   shall   take 
effect  only  at  death  of  testator. 

The  third  of  the  ideas  included  under  the  term  animus  tes- 
tandi is  that  the  will  can  take  effect  only  at  the  death  of  the 
testator.  In  the  cases  of  appointment  of  an  executor  of  the  will, 
or  a  guardian  for  testator's  minor  children,  it  seems  inevitable 
that  the  testator  must  intend  that  his  ovn\  death  is  to  occur 
before  such  appointment  can  take  effect.  But  in  the  disposition 
of  projierty  it  is  as  possible  for  testator  to  contemplate  such  dis- 
position during  his  lifetime  as  after  his  death.  This  is  one  of 
the  important  distinctions  between  the  will  and  the  other  in- 
struments whereby  title  to  property  is  conveyed. 

**  Houser  v.  Moore,  31  Pa.  St.  34G.  Such  questions  arise  in  suits  for  con- 

*^  Young  V.  Wark,  76  Miss.  829.  struction  rather  than  in   j  robate  and 

*«  Gaston's  Estate,  188  Pa.  St.  374.  contest.     See  Ch.  XL. 
Cope  V.  Cope,  45  0.  S.,  464. 


46 


LAW     OF    WILLS. 


This  may  be  considered  with  advantage  from  two  pcints  of 


view 


1.  If  the  instrument  in  dispute  shows  that  the  maker  thereof 
contemplates  that  by  the  provisions  thereof  the  possession  and 
ownership  of  his  property  shall  pass  from  him  during  his  life- 
time, it  is  clearly  not  a  will,  whatever  else  it  may  be.'*^ 

2.  It  is  not  conclusive  of  the  testamentary  character  of  the 
instrument  that  the  delivery  of  possession  of  property  is  post- 
poned till  the  death  of  the  maker. 

In  order  to  be  a  will  the  instrument  must  not  only  postpone 
delivery  of  the  property  till  the  death  of  the  testator,  but  it  can 
not  even  pass  a  present  vested  right  to  the  enjopnent  of  the 
estate  at  the  death  of  the  testator.  Thus,  a  grant  by  A  to  B 
and  his  heirs  reserving  a  life  estate  to  A  is  not  a  will,  for  it 
passes  a  present  right  in  the  estate,  although  the  enjoyment 
thereof  may  be  postponed  to  a  future  time,  and  that  time  is  to 
be  the  death  of  A.^^  Even  if  A  reserve  in  his  deed  a  right  of 
revocation  thereafter  it  is  still  a  deed  and  not  a  will,  because 


48  Watson  V.  Watson,  24  S.  Car. 
228 ;  St.  John's  Parish  v.  Bostwick, 
8  App.  D.  C.  452;  Parker  v.  Ste- 
phens (Tex.  Civ.  App.),  39  S.  W. 
164;  In  re  Ogle's  Estate,  97  Wis. 
56 ;  72  N.  W.  389 ;  Lauck  v.  Logan, 
45  W.  Va.  251 ;  31  S.  E.  986. 

49  Thompson  v.  Johnson,   19  Ala 
59;    Kelly  v.   Richardson,   100   Ala 
584;   13  So.  785:  Nichols  v.  Chand 
ler,   55   Ga.   369;    Comer   v.   Comer 
120  111.  420;  Cates  v.  Cates,  135  Ind 
272;  Bcvins  V.  Phillips,  6  Kan.  App 
324;    Miller   v.   Holt,    68   Mo.    584 
Townsend   v.    Rackham,    143   X.   Y, 
516;  Meck's  Appeal,  97  Pa.  St.  313 
In  re  Kisecket's  Estate,  190  Pa.  St 
476;  42  Atl.  886;  Watson  v.  Wat- 
son, 24  S.  Car.  228;  Armstrong  v, 
Armstrong,    4    Baxt.    (Tenn.)    357 
Roberts  v.  Coleman,  37  W.  Va.  143 


"The  essential  characteristic  of 
an  instrument  testamentary  in  its 
nature  is,  that  it  operates  only 
upon  and  by  reason  of  the  death  of 
the  maker.  Up  to  that  time  it  is 
ambulatory.  By  its  execution  the 
maker  has  parted  with  no  rights 
and  divested  himself  of  no  modi- 
cum of  his  estate,  and  fer  contra  no 
rights  have  accrued  and  no  estate 
has  vested  in  any  other  person.  The 
death  of  the  maker  establishes  for 
the  first  time  the  character  of  the 
instrument.  It  at  once  ceases  to 
be  ambulatory  and  acquires  a  fixed 
status  and  operates  as  a  conveyance 
of  title.  Its  admission  to  probate 
is  merely  a  judicial  declaration  of 
that  status."  Nichols  v.  Emery, 
109   Cal.  323. 


LAW    OF    WILLS. 


47 


the  right,  though  voidahle,   is  nevertheless  vested  until  it  is 

avoided.^*^ 

Where  the  maker  of  the  instrument  clearly  intends  that  no 
interest  shall  pass  thereunder  until  his  death  the  instrument 
is  inherently  testamentary  in  its  nature. 

So  where  a  woman,  who  was  dangerously  ill  and  not  expected 
to  live  more  than  a  few  hours,  executed  the  following  instru- 
ment: ''It  is  my  desire  that  the  amounts  herein  may  be  dis- 
tributed as  follows : to  be  paid  from  the  rents  as  soon 

as  the  rents  can  be  collected,"  it  was  held  that  in  view  of  all  the 
surrounding  facts  the  lower  court  was  justified  in  finding  that 
this  instrument  was  the  last  will  and  testament  of  the  decedent 
and  not  the  expression  of  an  intention  to  make  a  gift  inter 

vivos.^^ 

So  where  testatrix  wrote  that  she  had  "this  day"  given  all 
her  property  to  certain  specified  persons,  resen-ing  the  use 
during  her  life,  such  persons  to  have  the  full  use  of  it  after  her 
death,  and  she  kept  this  paper  for  nearly  ten  years  in  her  bible, 
and  gave  instructions  just  before  her  death  that  the  paper 
should  be  read  to  her  and  then  put  away  in  a  safe  place,  it  was 


50  PresidcHt,  etc.  of  Bowdoin  Col- 
lege V.  Merritt,  75  Fed.  480;  Daniel 
V.  Hill,  52  Ala.  430 ;  Nichols  v.  Em- 
ery, 109  Cal.  323. 

Apparently      contra,     Milnes     v. 
Foden,  L.  R.  15  P.  &  D.  105.     But 
in  this  last  case  a  woman  about  to 
marry  settled  her  property  in  such 
trusts   as   she   might  thereafter,   by 
will     or     revocable     deed,     appoint. 
Subsequently,   in   1884,   she  made  ar 
will  which  did  not  expressly  include 
such   property.      In    1887    and   1889 
she    executed    two    revocable   deeds- 
poll,    to    take    effect    on    her    death. 
Under  these  facts  therefore,  Milnea 
V.    Foden    is    distinguishable    from 
President,  etc.,  of  Bowdoin  College 
V.   Merritt,   supra,   where   the   deed 
took   effect  at  once,  though  posses- 
sion was  postponed  till  the  donor's 
death. 


In  Milnes  v.  Foden  the  court 
said:  "if  there  is  proof  either  in 
the  paper  itself  or  from  clear  evi- 
dence dehors,  first,  that  it  was  the 
intention  of  the  writer  of  the  paper 
to  convey  the  benefits  by  the  instru- 
ment which  would  be  conveyed  by 
it  if  considered  as  a  will ;  secondly, 
that  death  was  the  event  which 
was  to  give  effect  to  it,  then,  what- 
soever its  form,  it  may  be  admitted 
to  probate  as  testamentary";  and 
in  Stroup  V.  Stroup,  140  Ind.  179, 
a  trust  deed  by  A  to  A's  use  for  life, 
on  his  death  to  B's  use,  reserving 
power  of  sale  and  revocation  to  A, 
was  held  tp  be  a  will. 

51  Smith  v.  Holden,  58  Kan.  535; 
50  Pac.  447 ;  Conrad  v.  Douglass,  59 
Minn.  498. 


48  3LA\V     OF     WILLS. 

held  to  be  a  will,  even  tlioiigh  words  of  the  present  tense  were 
1ised.^^ 

In  a  recent  Illinois  case  a  gift,  by  a  mother  to  her  daughter^ 
of  all  her  property  was  held  testamentary  in  character  when 
made  shortly  before  her  death  and  in  anticipation  of  support 
for  the  rest  of  her  life.^''^ 

On  the  other  hand,  a  declaration  that  specified  property  was 
a  j)resent  to  a  person  named  in  such  declaration  is  not  a  will 
where  it  appears  from  the  declaration  that  the  title  to  the  prop- 
erty was  to  pass  before  the  death  of  testatrix.^'* 

Putting  the  former  statement  in  a  converee  form,  if  the  in- 
strument is  clearly  a  will  it  does  not  pass  a  vested  interest. 
For  example,  a  husband  and  wife  made  a  will  devising  land  to 
their  son  and  daughter,  in  pursuance  of  a  promise  from  their 
children  to  support  them.  The  son  took  possession  of  the  land 
at  once.  It  was  held  that  these  facts  gave  him  no  estate  in 
the  land.^^ 


§50.     r.evocability. 

The  idea  of  revocability  is  an  essential  idea  of  a  will  and 
follows  almost  as  a  corollary  from  the  idea  that  the  will  passes 
no  present  interest  in  the  property  devised  or  bequeathed.  Such 
property  still  belongs  to  the  original  o^vner.  He  has  parted 
with  no  interest  in  it  whatever  by  making  the  will.  He  can 
still  sell  the  property  or  exchange  it,  or  pledge  it  or  give  it 
away.  Furthermore,  he  may  revoke  the  will  already  made  and 
make  a  new  will,  or  die  intestate,  as  he  pleases.^^ 

So  essential  a  feature  of  a  will  is  revocability  that  the  inser- 
tion, in  an  instrument  which  is  clearly  a  will,  of  a  clause  pro- 
viding that  it  is  not  to  be  revoked  has  no  effect  whatever  in 

52Kisecker's   Estate,    inO   Pa.    St.  55  Andrews  v.  Andrews,  122  N.  C. 

476.  ,352:  29  S.  Ji.  351. 

G3    Whiton  V.  Whiton,  179  111.  32.  =6  See   Chapter    XIV,   Revocation. 

54  In  re  Smith,  L.   R.   4.5   Ch.  D. 
632:  Reed  v.  Hazelton,  37  Kan.  321. 


LAW     OF     WILLS.  ■*• 

preventing  revocation."     Tliis  quality  of  the  will  is  what  is 
meant  when  it  is  said  that  the  will  is  ambulatory.^** 

If  the  instrument  executed  is  such  that  the  maker  can  not 
revoke  it,  it  may  be  a  deed  or  a  contract,  but  it  can  not  be  a  will, 
ibid  on  the  other  hand,  if  the  instrument  is  a  will,  it  is  rev- 
ocable.^^ 

§51.     Instruments  lacking  some  inherent  elements. 

An  instrument  which  unites  the  elements  included  and  just 
discussed  under  the  heads  of  "Animus  Testandi"  and  "Revo- 
cability"  is  a  will  as  far  as  the  inherent  elements  are  con- 
cerned. An  instrument  which  possesses  any  nmnber  of  these 
elements  less  than  all  is  not  a  will 

The  following  discussion  is  of  the  distinction  between  wills 
and  other  instruments  with  which  they  may  be  confused. 

A  will  may  be  confused  with  a  deed,  a  contract,  an  order,  a 
power  of  attorney  or  other  instnmient.  In  cases  of  doubt  the 
application  of  the  tests  of  animus  testandi  and  revocability  will 
determine  whether  the  instrument  under  consideration  is  a  will 
or  not.^^ 

§52.     Confusion    between    deeds    and   wills.— Instruments    held 
deeds. 

An  instrument  in  form  a  warranty  deed,  but  containing  a 
clause,  'This  paper  to  be  in  full  force  till  T  desire  to  act"  or 
"to  alt.,"  passes  a  present  estate,  though  with  a  possible  right 
of  revocation,  and  is  a  covenant,  to  stand  seized  to  uses,  i.  e., 

a  deed.®^ 

In  another  case  an  instrument,  in  form  a  warranty  deed, 

57  Wilkes  V.  Burns,  60  Md.  64.  is  to  act  not  only  on  the  property 

58  This  is  the  meaning  which  the  owned  by  the  testator  at  the  time  of 
weight  of  authority  attaches  to  the  its  execution,  but  also  on  that  ac- 
word  ambulatory.  Bouvier's  Law  quired  by  him  subsequently  thereto. 
Dictionary;  Jarman  on  Wills  (Oth  59  Hazelton  y.  Reed,  46  Kan.  73. 
ed  )  p  IS  In  Pollock  and  Mait-  eo  See  Sees.  52  to  57.  inclusiye. 
land's  History  of  the  Common  Law,  «i  Watson  y.  Wataon.  24  S.  Car. 
Vol.   IT,   p.   313.   the   word   amhula-  228. 

toTV  is  said  to  mean  that  the  will 


50 


LAW     OF    WILLS. 


contained  a  clause:  ^'Conditions  of  this  deed  is  suck  as  said 
party  of  the  second  part  that  this  land  shall  not  be  incumbered 
in  any  way,  or  this  deed  shall  be  void.  The  party  of  the  first 
part  is  to  hold  said  property  his  lifetime."     This  was  held  a 

deed.^^ 

Where  the  grantor  deeded  his  estate  in  trust,  reserving  a  life 
estate  to  himself,  and  also  reserving  the  power  of  revoking  the 
trust  deed  as  to  some  of  the  objects  of  the  trust,  for  fifteen 
years,  it  was  held  a  deed.^* 


62  Gates   V.   Gates,    135   Ind.   272; 
Bevins  v.  Phillips,  6  Kan.  App.  324 ; 
51  Pac.  59.     Instruments  containing 
similar    provisions    are    held    to    be 
deeds  in  Rawlings  v.  McRoberts,  95 
Ky.  346;  Garpenter  v.  Hannig  (Tex. 
Giv.  App.),  34  S.  W.  774;  Leslie  v. 
McKinney    (Tex.   Giv.   App.),   38   S. 
W.  378 ;  Guthrie  v.  Guthrie,  105  Ga. 
86;   Worley  v.  Daniel,  90  Ga.  650; 
Simon  v.  Wildt,  84  Ky.  157 ;  Sharp 
v.  Hall,  86  Ala.  110.      (A  provision 
in    an    ambiguous    instrument    that 
it  was  in  part  intended  "to  do  away 
with  all  need  or  necessity  of  taking 
out   letters   of  administration"   was 
held  to  be  important  in  determining 
its    nature.)      Beebe    v.    McKenzie, 
19   Ore.   296;    Brown   v.   Moore,   26 
S.  Gar.  1 60 ;  Ghavez  v.  Chavez  ( Tex. ) , 
13  S.   W.   1018;   McOnie  v.  Whyte, 
L.  R.   15  App.   Gas.   156;   White  v. 
Hopkins,    80    Ga.    154;      Owen     v. 
Smith,  91   Ga.  564;   Goff  v.  Daven- 
port,   96   Ga.   423;    Ward   v.   Ward 
(Ky.),  48  S.  W.  411;  20  Ky.  L.  R. 
986. 

63  President,  etc.  of  Bowdoin  Col- 
lege V.  Merritt,  75  Fed.  480.  Simi- 
lar views  are  expressed  in  Stewart 
T.  Stewart,  5  Conn.  316;  Hall  v. 
Bragg.  28  Ga.  330;  Ritter's  Ap- 
peal, 59  Pa.  St.  9;  Millican  v.  Mil- 
lican,  24  Tex.  426 ;  Kelly  v.  Parker, 
181  111.  49;  Spencer  v.  Bobbins,  106 
Ind.  580;  Gates  v.  Gates,  135  Ind. 
272.     In  this  case  it  was  said  that 


an  instrument  which  does  not  pass 
any   interest   until   after   the   death 
of  the  maker  is  a  will ;  citing  Nich- 
ols V.  Emery   (Cal.),  41  Pac.  1089; 
Craven  v.  Winter,  38  lo.  471;  Spen- 
cer V.  Bobbins,  106  Ind.  580;   5  N. 
E.  726;   Kopp  V.  Gunther,  95  Cal. 
63 ;  30  Pac.  601 ;  Diefendorf  v.  Dief- 
endorf,    1.32    N.    Y.    100;    30   N.    E. 
375;     Chrisman    v.   Wyatt,   7    Tex. 
Giv.  App.  40;  26  S.  W.  759;  Jenk- 
ins   V.    Adcock,    5     Tex.    Civ.    App. 
466;     27     S.     W.     21;      Bunch     v. 
Nicks,     50     Ark.     367;     7     S.     W. 
563;      Bromley     v.     Mitchell,      15.5 
Mass.  509;   30  N.  E.  83;   Moury  v, 
Heney,    86    Cal.    471;    25    Pac.    17; 
Book  V.  Book,  104  Pa.  St.  240 ;  Mc- 
Guire  v.  Bank.  42  Ala.  589 ;  Hall  v, 
Burkham,    59    Ala.    349;    Owen    v. 
Smith,   91   Ga.   564;    18    S.   E.   527. 
In  this  case  the  court  quoted  the  fol- 
lowing:   "A  will  recognized  by  this 
court,    which    seems    to    have    the 
united    support   of    the   authorities, 
furnishes  an  unerring  test  to  deter- 
mine   the   character   of   the    instru- 
ment.   It  is  this :  If  the  instrument 
passes  a  present  interest,  although 
the  right  to  its  possession  and  en- 
jo;sTnent  may  not  occur  till  some  fu- 
ture time,  it  is  a  deed  or  a  contract; 
but  if  the  instrument  does  not  pass 
an  interest  or  right  till  the  death 
of  the  maker  it  is  a  will  or  testa- 
mentary paper.     University  v.  Bar- 
rett.  22   To.   60 :    Craven  v.  Winter, 


LAW     OF     WILLS. 


51 


If  the  deed  has  been  delivered  either  to  the  grantee  or  in 
escrow,  it  is  held  in  some  states  that  it  passes  a  present  estate, 
even  though  it  contains  the  words  ''only  to  take  effect  at  the 
death  of  the  grantor,"  or  their  equivalent.  Such  words  are 
held  to  be  only  the  reservation  of  a  life  estate  to  the  grantor, 
while  the  remainder  passes  to  the  grantee  on  delivery.  In 
such  states  instruments  of  this  sort  are  held  to  be  deeds,  not 
wills.^^ 

The  fact  that  an  instrument  which  was  intended  to  pass  title 
on  delivery  was  never  delivered  is  no  reason  for  regarding  it 
as  a  will.^^ 


j53.     Confusion    between    deeds    and    wills, 
wills. 


-Instruments    held 


Where,  on  the  other  hand,  testator's  intention  is  manifest 
from  the  whole  instrument  that  it  shall  not  take  effect  until 
the  death  of  the  maker  and  shall  not  pass  any  property  right 


38  lo.  471."  Other  cases  on  this 
point  are  Boling  v.  Boling,  22  Ala. 
82G ;  Kaufman  v.  Ehrlich,  94  Ga. 
159;  Ward  v.  Ward  (Ky.),  48  S.  W. 
411;  Knowlson  v.  Fleming,  1G5  Pa. 
St.  10;  Wilson  v.  Anderson,  186  Pa. 
St.  531 ;  142  Pa.  St.  149. 

Contra,    Sti'oup    v.    Stroup,     140 
Ind.  179. 

61  Kelly  V.  Parker,  181  111.  49 
Shaekleton  v.  Sebree,  86  111.  616 
Harshbarger  v.  Carroll,  163  111.  636 
Latimer  v.  Latimer,  174  111.  418 
citing  Vinson  v.  Vinson,  4  111.  App 
138;  Calef  v.  Parsons,  48  111.  App 
253;  Golding  v.  Golding,  24  Ala 
122;  Elmore  v.  Mustin.  28  Ala 
309;  Gilliam  v.  Miistin.  42  Ala 
365;  Bryan  v.  Bradley,  16  Conn 
474 ;  dimming  v.  dimming,  3  Ga 
460;  Wall  v.  Wall,  .30  Miss.  91 
Bowler  v.  Bowler,  176  111.  541 
(These  Illinois  cases  distingui.sh  or 


ignore  the  dictum  in  Massey  v.  Hun- 
t'ington,  118  IlL  80.)  Wilson  v. 
Carrico,  140  Ind.  533,  citing  Owens 
V.  Williams,  114  Ind.  179;  Bunch 
V.  Nicks,  50  Ark.  367;  Wyman  v. 
Brown,  50  Me.  139;  Abbott  v. 
Holloway,  72  Me.  298;  Stout  v. 
Rayle,  146  Ind.  379;  Kelley  v.  Shi- 
nier, 152  Ind.  290;  Matthews  v. 
Moses,  21  Tex.  Civ.  App.  494;  Bill- 
ings V.  Warren,  21  Tex.  Civ.  App 
77;  Ogle's  Estate,  97  Wis.  56;  Rob- 
inson V.  Ingram  (N.  Car.)  (1900), 
■35  S.  E.  612;  Lauck  v.  Logan,  45 
W.  Va..  251;  Love  v.  Blauw  (Kan.) 
(1900),  59  Pac.  1059,  reversing  57 
Pac.  258.  On  this  point  the  au- 
thorities are  in  conflict.  See  for 
contrary  authorities  the  cases  cited 
in  the  preceding  note,  and  Pinkham 
v.  Pinkham,  55  Neb.  729. 

en  .Johnson  v.  Johnson,   103  Tenn. 
.32,  52  S.  W.  814. 


52  LAW     OF     WILLS. 

till  that  time  it  is  held  to  be  inherently  a  will,  no  matter  what 
outward  form  it  may  assume.*^^  Thus,  where  the  maker  ex- 
ecuted the  following  instrument:  ''Know  all  men  by  these 
presents  that  I,  Joseph  Robinson,  for  the  consideration  of  one 
dollar  to  me  in  hand  paid,  as  well  as  my  affection,  do  hereby 
assign  and  set  over  to  my  daughter,  Elizabeth  Jane  Brewster, 
all  of  my  property,  both  personal  and  real,  to  have  the  same 
after  my  death. 

Attest :  his 

J.  S.  PosT^  Joseph  ^  Robinson^ 

E.  McClellax,  mark," 

such  instrument  was  held  to  be  a  will.^^ 

So  where  the  instrument  recited  that  the  grantor  did  "hereby 
give,  convey  and  confirm  unto  my  said  wife  and  her  heirs  in 
absolute  right  all  my  entire  estate,  real  and  personal  and  all 
manner  of  property  I  now  or  may  hereafter  own  .  .  .  reserv- 
ing a  life  estate  and  enjoyment  of  said  property  to  myself  and 
for  the  payment  of  all  my  just  debts ;  this  deed  of  gift  to  take 
effect  absolutely  at  my  death  and  to  be  valid  and  conclusive," 
such  instrument  never  having  been  delivered,  and  showing  that 
it  was  not  to  go  into  effect  till  the  maker's  death,  was  held  to 
be  a  will.^^ 


66  Mosser  v.  Mosser,  32  Ala.  551 ;  301 ;    Dunn    v.    Bank,    2    Ala.    152 

Walker  v.  Jones,  23  Ala.  448;  Lea-  Trawick    v.    Davis,    85     Ala.     342 

ver  V.  Ganss,  62  lo.  314;   Pinkham  Griffith    v.    Marsh,    86    Ala.     302 

V.   Pinkham,    55    Neb.    729;    Turner  Sharp    v.    Hall,    86    Ala.    110;    El- 

V.   Scott,   51   Pa.   St.   126;   Naugher  more  v.  Mustin,  28  Ala.   304;   Gill- 

V.  Patterson,  Tex.   Civ.  App.  28   S.  ham  v.  Mustin,  42  Ala.  305.  A  sim- 

W.  582;   Wren  v.  CoflFey,  26  S.  W.  ilar  case  is  Williams  v.  Tolbert,  60 

42;  Hester  v.  Young,  2  Kelly  (Ga.)  Ga.   127,   citing  Daniel  v.   Veal,   32 

31:    Kinaid  v.  Kinaid,   1   Speer  Eq.  Ga.  589:   Bass  v.  Bass,  52  Ga.  531,. 

250;    Milliean   v.   Millican,   24   Tex.  and  distinguishing  Nichols  v.  Chand- 

420.  ler,   55  Ga.   309.     So  are  Barnes  v. 

67Rol)inson  v.   Brewster,   140   111.  Stephens,    107    Ga.    430;    33    S.    E. 

649.  399;   Dye  v.  Dye.   108  Ga.  741:   De 

6^  Crocker  v.  Smith,  94  Ala.  295,  Bajligethy    v.    Johnson     (Tex.    Civ. 

citing    Jordan    v.    Jordan,    65    Ala.  App.)   (1900),  50  S.  W.  95. 


CO 

LAW     OF     WILLS. 


An  instrument,  which  was  a  deed  in  usual  form,  except  for 
a  clause  providing  "in  no  event  is  this  instrument  to  go  into 
effect  till  my  death,"  was  held  to  be  a  will.*^'^ 

In  another  case  the  instrument  was  dra^^^l  in  the  form  of  a 
warranty  deed,  except  that  it  provided  that  upon  the  death  of 
the  maker  "this  conveyance  to  he  delivered  to  the  sanl  Eliza- 
beth Kellev.'^  The  maker  kept  it  in  his  control  until  his 
deatli.  In  view  of  the  fact  that  it  clearly  appeared  his  inten- 
tion that  the  instrument  should  not  take  effect  until  his  death, 
it  was  held  to  be  a  will."^" 

Another  instrument  was  in  the  usual  form  of  a  warranty 
deed  except  for  the  addition  of  the  clause:  "also  one  half  of 
all  mv  personal  property  and  money  left  at  my  death  shall  go 
to  the  above  Elizabeth  Ann."  The  evidence  showed,  and  the 
circuit  court  found  as  a  fact  that  this  instrument  was  never 
delivered,  and  that  the  maker  intended  it  to  take  effect  at  his 
death  and  not  before.    Held  by  the  supreme  court  to  be  a  will. 

So  where  an  instrument  recited  that  "We  do  give  and  be- 
queath all  our  real  and  personal  property  of  which  we  die 
possessed  or  seized"  to  certain  beneficiaries,  such  instrument 
was  held  testamentary  in  its  nature.'^ 

60  Donald   v.   Nesbit,   89   Ga.  200,  Of  course  this  docs  not  mean  that 
citing  and  following  Bright  v.  Ad-  the  instrument   is  always  vahd  be^ 
ams5lGa.  239.     Similar  cases  are  cause  it  is  testamentary.     In  many 
Turner    v.    Scott,    51  -Pa.    St.    12G;  of   the  cases   cited   there  was   some 
Stroup  V.  Stroup,  140.  Ind.  179,  but  defect  in  the  formal  requisites  of  the 
an    instrument   almost   identical   in  will,  which  made  the  instrument  in- 
form was   held   a   deed   in   Seals  v.  operative  for   the  very  reason  that 
Pierce,   83   Ga.   787.  it  was  testamentary.    In  this  case  of 
70  Kelly  V.   Richardson,    100    Ala.  Poore    v.    Poore,    for    instance,    the 
584    citin-  Kyle  v.  Perdue,  87  Ala.  instrument    was    not    properly    wit- 
^23            °  ncssed,  and  hence,  though  testamen- 
'    7i'/„,  re  Lautenshlager,   80  Mich.  '  tary,  was  not  a  valid  will.     Similar 
285,  citing  Bidev  v.  Sou vey,  45  Mich.  instruments   were   he  d   to   be   wills 
370;  Morrell'v.  Dickey,  1  Johns  Ch.  in   In  re  Goods  of   Shnn,   L.   R.    15 
153 ;  Baylev  v.  Bailey,  5  Cush.  245 ;  Prob.   Div.   1.56 :    Brewer  v.   Bax  er 
Gage  V.  Gage,  12  N.  H.  371;  Frew  41   Ga.  212;   Roth  v.  Micha lis    125 
V.  Clarke,  80  Pa.   St.    170.     To   the  111.    325;    Stevenson    -    Huddleson, 
same  effect  is   Smith   v.   Holden.   58  13    B.    Mon.     (Ky.^     299;    Gage    v 


Kan.  535 


Gaire,    12    N.    H.    371;    Watkins 


72'poore    V.    Poore,    55    Kan.    687.       Dean,   10  Yerg.    (Tenn.)    321. 


54  LAW     OF    WILLS. 

Testator's  intention  that  the  instrument  shall  not  take  effect 
until  his  death  is  often  shown  from  expressions  in  his  will 
referring  to  his  death  as  the  event  which  was  to  make  his  dis- 
positions of  property  effective.  Thus,  an  instrument  reciting 
'Tf  I  do  not  live  to  be  21  years  of  age,  I  give,  etc.,"  was  held 
to  be  a  will.'^^  As  was  an  instrument  -in  the  form  of  a  deed 
to  take  effect  only  "if  I  should  die  or  be  killed  in  this  war.'''''^ 

So,  also,  a  trust  deed  of  property  in  trust  to  support  grantor 
and  pay  the  residue  of  the  fund  to  grantor's  children  one  year 
after  his  death  was  held  to  be  a  will."^^ 

A  trust  deed  to  grantor's  use  for  his  life  and  on  his  death  to 
another,  reserving  power  of  revocation  and  sale  to  grantor,  was 
held  a  will.'^^  And  a  revocable  trust  deed  appointing  trusts  to 
take  effect  upon  the  death  of  the  grantor  is  held  to  be  a  will.'^''^ 

In  a  case  which  is  in  some  respects  a  departure  from  the 
usual  rule,  a  deed-poll,  which  was  witnessed  by  two  witnesses, 
was  admitted  to  probate  as  the  last  will  of  testatrix:  upon  ex- 
trinsic evidence  that  she  wished  it  to  oj^erate  as  her  will.'^^  And 
a  deed  in  form  which  was  never  delivered  but  concerning  which 
the  maker  of  the  instrument  said  that  he  told  his  children  "I 
wanted  them  to  have  the  home  farm  if  I  dropped  off  or  any- 
thing happened"  was  held  to  be  a  will,  and  not  a  deed.  Like 
other  cases  holding  similar  instruments  to  be  wills,  this  last 
point  was  not  necessary  to  the  decision  of  the  case,  as  the  real 
holding  was  that  the  attempted  conveyance,  being  without  con- 
sideration and  not  delivered,  was  not  valid  as  against  the  cred- 
itors of  the  grantor.''^^ 

73  Daniel   v.   Hill,   52   Ala.   430.  tt  Milnes   v.   Foden,   L.   R.    15   P. 

74Gillham    v.     Mustin,     42     Ala.       D.    105. 
365.  "8  In  re  Slinn,  L.  R.  15  P.  D.  156. 

75  Frederick's  Appeal,   52   Pa.   St.  79  Blackman   v.    Preston,    123   HI. 

338.  381. 

7G  Stroiip  V.  Stroup,  140  Ind.  179. 
For  contrary  authorities  see  Sec. 
.52. 


LAW     OF     WILLS. 


55 


§54.     Confusion  between  wills  and  contracts — Instruments  held 
contracts. 

In  detennining  whether  an  instrument  in  doubt  is  a  will  or 
a  contract,  the  same  test  applies  as  in  the  case  of  confusion 
between  wills  and  deeds.  The  test  is  not  the  time  of  per- 
formance, but  the  time  at  which  by  the  terms  of  the  instrmnent 
a  property  right  under  the  instrument  attaches.  If  by  the 
terms  of  the  instrument  no  property  right  is  to  attach  under  it 
until  testator's  death,  the  instrument  is  a  will ;  but  if  a  prop- 
erty right  attaches  during  testator's  lifetime,  the  instrument 
is  a  contract,  even  though  the  time  of  performance  may  be  post- 
poned till  the  death  of  testator.  Thus,  an  instrument  in  the 
following  form:  ''One  day  after  my  death  I  promise  to  pay 
to  the  order  of  K'ancy  M.  Jones  two  thousand  dollars  to  be  paid 
out  of  my  estate.  For  value  received  without  any  relief  from 
valuation  or  appraisement  laws  with  6  percent  interest  from 
date  and  attorney's  fees"  created  a  present  liability,  and  hence 
was  held  to  be  a  contract,  not  a  will.^^ 

In  another  case,  where  a  similar  instnmient  was  under  con- 
sideration, the  court  held  it  to  be  at  least  prima  facie  a  contract, 
saying:  "Its  obligatory  character  did  not  depend  on  her  (the 
maker's)  death,  but  only  the  provision  for  its  discharge."  ^^ 
And  where  a  creditor  took  a  note  with  interest  payable  annually 
during  her  life,  interest  to  cease  at  her  death,  and  principal 
never  to  be  due,  it  was  held  a  transfer  of  the  amount  owed  and 
not  testamentary.^^ 

If  an  instrument  possesses  all  the  elements  of  a  contract,  the 
fact  that  the  time  of  performance  is  fixed  at  testator's  death, 
or  within  a  given  time  thereafter,  does  not  make  it  a  will.^""' 

80  Price  V.  Jones,  105  Ind.  543.  St.  477 ;   Miller  v.  College,   177  111. 

81  Kirkpatrick   v.   Pvle,   6   Houst.       280;   42  L.  11.  A.  797. 

(Del.)   569.                     '  83  Miller  v.  College,  177  111.  280: 

82Hinkle   v.   Landis,   131    Pa.   St.  42   L.   R.   A.   797,   alTivminp:   71    111. 

573.     Other  cases  of  like  nature  are  App.    ,587;    Hescman   v.    Moon,    131 

Crider  v.  Shelby,  95  Fed.  Rep.  212;  N.  Y.  402;  Wolfe  v.  Wilsey,  2  Ind. 

McKinnon    v.    McKinnon,    5G     Fed.  App.    549;    Krell    v.    Codman,    154 

409;  In  re  Sunday's  Estate,  167  Pa.  Mass.   454;    Kirkpatrick  v.   Pyle,   6 

St.  30;  Zn  re  Maul's  Estate,  186  Pa.  Houst.    (Del.)    5C9. 


56  LAW     OF     WILLS. 

§55.      Confusion  between  wills  and  contracts. — Instruments  held 
wills. 

In  accordance  with  the  principles  laid  dowTi  an  instrument 
may  be  valid  as  a  will,  although  it  is  drawn  in  the  form  of 
a  contract,  if  it  possesses  the  inherent  elements  of  a  will ;  that 
is,  in  distinction  from  a  contract,  that  bv  its  terms  the  inten- 
tion of  the  maker  appears  that  no  interest  shall  attach  under 
such  instrument  until  the  death  of  the  maker.^'* 

An  instrument  was  delivered  as  follows : 

Md.,  Sept.  4,  1884. 

"At  mj  death  my  estate  or  my  executor  pay  to  July  Ann 
Cover  three  thousand  dollars. 

[Seal.]  David  Eintgel."' 

There  was  but  one  witness  to  this  instrument.  It  will  be 
noticed  that  there  M^as  no  promise  to  pay  and  no  recital  of  a 
consideration.     Held  testamentary  in  its  nature.*^^ 

Where  the  donor  transferred  certain  property  gratuitously 
by  a  deed  .and  a  bill  of  sale,  it  being  understood  that  if  donor 
died  under  an  impending  surgical  operation  the  property  should 
be  distributed  by  the  holders  thereof  in  accordance  with  a  writ- 
ten but  unsigned  memorandum  for  such  distribution,  which 
accompanied  the  said  deed  and  bill  of  sale ;  but  that  if  donor 
should  recover  from  the  operation  the  property  should  not  vest, 
such  a  disposition  was  held  to  be  testamentarv  in  its  nature.^*' 

84  In  an  early  English  case  an  in-  -witnesses  at  the  date  of  the  instrn- 
strument  was  held  to  be  a  will,  ment.  See  also  obiter  in  Simon  v. 
though  in  the  following  form:  "By  Wildt,  84  Ky.  157,  where  the  in- 
tliis  deed  I  bind  myself  to  give  to  struraent  purported  to  be  "a  con- 
my  wife,  either  on  the  death  of  her  tract  and  will,"  and  the  court  said 
mother  or  on  the  sale  of  the  York-  '"if  it  appears  that  the  maker  did 
shire  estate,"  certain  property.  "I  not  intend  it  to  be  operative  until 
do,  therefore,  hereby  ordain  that  his  death,  it  will  be  a  will.  A  sini- 
my  executors,  etc.,  consider  that  ilar  case,  excejit  that  under  the  laws 
deed  as  the  most  solemn  obligation,  of  Pennsylvania  tlie  will  was  exe- 
in  confirmation  of  which  I  set  my  cuted  in  legal  form,  is  Frew  v. 
hand   and   seal."     Coop  v.   Coop   in  Clarke,  80  Pa.  St.   170. 

note  to  Thorald  v.  Thorald,   1   Ecc.  so  Knight  v.  Tripp.   121  Cal.  671, 

Rep.   15.  49  Pac.  838.  As  testamentary,  it  wag 

85  CoA-er  V.  Stem,  67  Md.  449.  invalid,  as  not  having  the  formali- 
Since  it  was  testamentary  it  was  of  ties  required  by  law. 

no  validity,  as  the  law  required  two 


LAW     OF     WILLS,  "• 


An  instrument  which  provides  that  if  a  certain  orphan,  a 
member  of  the  family  of  the  person  executing  the  instrument, 
survives  the  latter,  he  shall  receive  a  certain  sum,  is  a  will,  and 
not  a  contract.^'^ 

So  was  the  following  instrument :  ''Due  at  my  death  to  U.  J . 
the  sum  of  two  thousand  five  hmidred  dollars  from  the  general 
fund  of  my  estate  as  a  gift."  ^^ 

Bonds  executed  and  kept  under  the  control  of  the  maker  t^ 
be  delivered  at  his  death  are  testamentary ,8°  and  an  instrument 
evidently  testamentary  in  its  nature  was  held  to  be  a  will,  even 
though  it  began  ''I  agree  to  will."^° 

An  instrument  which  set  forth  that  the  maker  intended  to 
give  a  certain  property  ''to  support  her  if  she  should  be  the 
longest  lived,  say  $300  and  notes  now  due  her;  and  it  is  dis- 
tinctly understood  that  this  obligation  is  not  to  be  sold,  nor 
assigned,  nor  no  attempt  to  collect  it  in  my  lifetime,  without 
mv  consent,"  and  which  was  supplemented  by  two  provisions 
-I  now  add  $50  more,"  and  "I  now  add  $100  more,"  was  held 
to  be  testamentary.^!  But  an  instrument  somewhat  similar  m 
form  but  which  does  not  show  an  intent  to  take  effect  only  upon 
the  death  of  the  maker  has  been  held  not  to  be  a  will.^"  ^^ 

An  instrument  may  be  in  part  a  will  and  in  part  a  contract. 

§56.     Confusion  between  wills  and  orders. 

In  case  of  doubt  whether  an  instrument  in  the  fonn  of  an 
order  or  a  note  of  instructions  to  third  persons  is  not  really  a 
will,  the  test  is  the  same  as  in  the  case  of  deeds  and  contracts. 
If  the  interest  created  is  tx)  begin  as  a  vested  interest  during 
testator's  lifetime,  the  instrument  is  an  order,  even  if  the 
beneficial  results  of  such  interests  are  postponed  until  the  death 
of  the  maker;  but  if  the  interest  .thereby  created  is  not  to  begin 
till  the  death  of  the  maker,  the  instrument  is  a  will. 

on     \Tr,  1^  S    \V    .550.    Ill  is  instrument  was 

sTSwann     v.     Hoiisman,    90     Va.  .^>  ^.  u  •  •))"•                    .•^„"  K^  u^ 

endorsed  as  an  "obligation     by  its 
816. 

88  Johnson  V.  Yancey,  20  Ga.  707.  maker. 

89Carev  v.  Dennis.  13  Md.  1.  ^^  Scott's    Estate    (Cal.)     (1000), 

9oLonger's    Estate,    108    lo.    34;  60  Pac.  627. 

78  N    W    834.  93  Reed  v.  Hazclton,  3/   Kan.  .321. 

91  Pelley  V.  Earles  (Ky.).  (1900^ 


58  LAW    OF    WILIS. 

The  owner  of  some  government  bonds  wrote  to  the  bankers 
who  had  such  bonds  in  custody:  "Gents:  of  the  7^^  govern- 
ment bonds  of  mine  in  your  hands,  I  hereby  assign  to  my  wife 
H.  C.  $6,000,  she  to  draw  the  interest  of  the  same,  you  keeping 
possession  of  the  same  .  .  .  My  wife  to  draw  the  interest  till 
her  death,  to  have  no  control  of  the  principal  so  far  as  dis- 
posing of  them  is  concerned — the  bonds  at  her  death  to  revert  to 
my  heirs.  The  above  assignment  to  take  effect  at  my  death,  I 
controlling  them  in  the  meantime."  This  letter  was  signed  by 
the  writer.  It  was  held  to  be  testamentary  in  its  nature,  as 
it  was  not  to  go  into  effect  till  the  writer's  death;  hence  it 
needed  the  statutory  formalities  to  be  valid.^'* 

In  another  case  the  holder  of  a  benefit  certificate  indorsed 
upon  the  certificate  a  statement  that  at  her  death  her  claim 
should  go  to  her  two  children  named  therein,  or  to  a  certain 
person  as  executrix  for  said  children.  This  instrument  was 
held  to  be  testamentary  in  character,  and  hence  defective,  as 
lacking  statutory  formalities.^^ 

So  a  depositor  in  a  savings  bank  had  a  right  under  the  by- 
laws of  the  bank  to  enter  upon  the  bank-book  the  name  of  the 
"person  or  persons  to  whom,  in  event  of  her  absence  or  death, 
the  money  shall  be  paid  if  not  otherwise  disposed  of."  She 
told  the  ofiicer  of  the  bank  to  enter  the  name  of  Mary  Rem- 
ington under  such  heading ;  he  did  so,  and  with  another  of  the 
bank  officials  witnessed  the  appointment  in  writing.  It  was 
held  that  this  act  was  in  its  nature  testamentary,  therefore 
invalid  since  the  depositor  did  not  sign  the  appointment.^^  Or 
a  depositor  may  deposit  in  the  savings  bank  in  the  name  of 
himself  and  some  other  person  or  the  survivor  of  them.     The 

9-1  Comer  v.   Comer,    120   111.   420.  96  Remington    v.    Bank,     76     Md. 

95  Grand  Fountain  of  U.  C,  etc.,  546.      Similar   cases   are   Knight  v. 

V.  Wilson.  96  Va.  594;   32  S.  E.  48  Tripp,    121    Cal.    674;    Murdock    v. 

So  in  an  assignment  of  a  life  insur-  Bridges,   91    Me.    124;    Flanagan   v. 

ance  policy  to  take  effect  after  the  Nash,  185  Pa.  St.  41. 
death  of  assignor.     Schad's  Appeal, 
88  Pa.  St.  111. 


XAW     OF     WILLS. 


59 


courts  do  not  agree  as  to  whether  such  an  act  is  testamentary 

or  not.^^ 

On  principle  it  is  hard  to  see  wherein  it  is  properly  testa- 
mentary, if  a  present  interest  in  the  fund  vests  on  deposit, 
and  the  fund  is  subject  to  the  order  of  either  or  of  both.  Un- 
doubtedly an  attempt  to  keep  full  control  of  the  fund  in  the 
lifetime  of  the  owner,  indicating  only  to  whom  the  balance 
remaining  at  his  death  should  be  paid,  is  testamentary;  but 
the  two  cases  are  distinguishable. 

A  transfer  of  a  bond  to  one  for  life,  and  on  his  death  to  an- 
other, which  passes  a  present  vested  interest  is  not  testamen- 
tary in  its  nature.^  ^ 

§57.     "Will  in  form  of  power  of  attorney. 

An  instrument  drawn  in  the  form  of  a  power  of  attorney 
appointing  an  executor  is  testamentary  in  character.^^ 


§58.     Informal  wills. 

The  foregoing  list  of  writings  with  which  a  will  may  be  con- 
fused is  not  exclusive.  A  will  may  assume  the  outward  form 
of  anv  instrument.     This  topic  was  formerly  more  important 


9  7  In  Norway  Savings  Bank  v. 
Meniam,  88  Me.  146,  33  Atl.  840, 
such  a  disposition  was  treated  as 
testamentary,  and  therefore  invalid 
unless  executed  with  the  formalities 
required  by  the  Wills  Act,  citing 
Augusta  Savings  Bank  v.  Fogg,  82 
Me.  538;  Sherman  v.  New  Bedford 
Savings  Bank,  138  Mass,  581; 
Smith  V.  Speer,  34  N.  J.  Eq.  336; 
Towle  V.  Wood,  60  N.  H.  434.  In 
Metropolitan  Savings  Bank  v.  Mur- 
phy, 82  Md.  314,  a  similar  deposit 
was  held  not  to  be  testamentary  in 
its  nature,  but  a  valid  contract 
analagous  to  an  equitable  assign- 
ment, distinguishing  Dougherty  v. 
Moore,  71  Md.  248. 

98  Martin  v.  Martin,  170  111.  639. 


9»  Tusch  V.  Savings  Bank,  48  N.  Y. 
Supp.  221;  Rose  v.  Quick,  30  Pa. 
St.  225.  Other  cases  distinguish- 
ing a  will  from  other  instruments 
are:  Mosser  v.  Mosser,  32  Ala.  551; 
In  re  Skerret's  Estate,  67  Cal.  585 ; 
Seals  V.  Pierce,  83  Ga.  787;  Mas- 
sey  v.  Huntington,  118  111.  80;  Cas- 
tor V.  Jones,  86  Ind.  289;  Leathers 
V.  Greenacre,  53  Me.  561;  Edwards 
V.  Smith,  35  Miss.  197;  Towle  v. 
Wood,  60  N.  H.  434 ;  Lines  v.  Lines, 
142  Pa.  St.  149 ;  Frew  v.  Clarke,  80 
Pa.  St.  170;  Babb  v.  Harrison,  9 
Rich.  Eq.  (S.  Car.)  Ill;  Watkins 
V.  Dean,  10  Yerg.  (Tenn.)  321; 
Reagan  v.  Stanley,  11  Lea.  (Tenn.) 
316. 


60  LAW     OF     WILLS. 

than  it  is  now,  as  the  old  law  required  Lut  little  extrinsic  for- 
mality in  testaments  passing  personal  property.  This  was  the 
law  in  England  prior  to  1837.  It  was  often  difficult  to  deter- 
mine whether  a  writing  was  a  will,  or  merely  an  expression 
of  a  present  intention  to  make  a  will  in  the  future.  At  mod- 
ern law,  by  statute,  a  will  to  he  valid  -must  have  certain  ex- 
trinsic formalities,  such  as  a  signature  and  attestation  by  wit- 
nesses. Unless  a  paper  possess  these  formalities,  it  is  not  now 
a  practical  question  in  the  law  of  wills  whether  it  is  testamen- 
tary or  not.  There  are  certain  jurisdictions,  however,  that  do 
not  require  these  formalities.^ ^°  Among  them  are  Pennsyl- 
vania, where  the  attestation  by  witnesses  need  not  appear  upon 
the  paper,  and  such  jurisdictions  as  California,  where  the 
holographic  will  is  recognized,  that  is,  the  will  in  the  hand- 
writing of  the  testator,  which,  under  the  statutes  of  certain 
states,  needs  no  witnesses.  In  such  jurisdictions  it  is  still 
important  to  distinguish  between  the  will  and  the  expression 
of  intention  to  make  a  certain  will  thereafter. 

The  rule  is  that  no  set  form  of  expression  is  required.  All 
that  is  necessary  to  make  an  instrument  testamentary  is  that 
it  should  show,  when  read  in  connection  with  surrounding  facts 
and  circumstances,  a  testamentary  intention. 

A  discussion  of  particular  examples  of  the  distinction  be- 
tween the  informal  will  and  the  expression  of  an  intention  to 
make  a  will  in  the  future  properly  belongs  under  the  head  of 
"Construction,"  but  will  be  dealt  with  here  to  save  repetition 
in  a  subsequent  chapter. 

A  deed  of  property  had  never  been  delivered,  and  a  letter 
from  the  grajitor  to  the  grantee  contained  a  reference  to  the 
deed :  "We  all  know  that  life  is  uncertain  and  we  don't  know 
the  moment  that  we  may  be  called  away.  .  .  I  therefore 
want  you  to  know  that  you  are  provided  for  under  any  cir- 
cumstances." This  was  held  to  be  testamentary  and  therefore 
valid  as  a  holographic  will.^°^ 

The  following  was  written  on  the  back  of  a  business  letter: 


100  See    Chap.    XTTI.    Xuncupativ<»  loi  Skerrctt's  Estate,  67  Cal.  585. 

and  Holographic  Wills. 


LAW     OF     WILLS.  "^ 


"Ann,  after  my  death  you  are  to  have  forty  thousand  dollars ; 
this  you  are  to  have  will  or  no  will;  take  care  of  this  until 
my  death."  It  was  directed  ''To  Eliza  Ann  Byers."  It  was 
held  to  be  testamentary^  and,  as  it  complied  with  the  statutes 
then  in  force  in  Maryland,  a  valid  will.^^^ 

The  following  indorsement  on  a  promissory  note  was  made 
by  payee :  "If  I  am  not  living  at  the  time  this  note  is  paid,  I 
order'the  contents  to  be  paid  to  X."  This  was  held  to  be  a 
testamentary  instrument.^  *^^ 

An  envelope  was  indorsed,  "Dear  Bella,  this  is  for  you  to 
open."  Inside  was  a  promissory  note  for  two  thousand  dollars 
and  this  paper:  "Lewiston  Oct.  2,  1879.  My  wish  is  for  you 
to  draw  this  2,000  for  your  use  should  I  die  sudden.  Eliz- 
abeth Fosselman."     This  was  held  to  be  a  will.^*^^ 

The  following  writing:  "High  James  Kogers  do  give  to 
John  Jackson,  Sr.  my  property  known  as  penargyle  Hotel  and 
the  land  adjoining  in  Penargyle  ^Northampton  County  Pa. 
James  Kogers,"  was  written  by  Kogers  shortly  before  his  death 
and  placed  in  an  envelope  addressed  to  John  Jackson.  It 
was  held  to  be  a  will.^"^ 

So  the  following  informal  instrument  was  held  to  be  a  will  • 
"March  the  4  will  my  Properti  to  my  wief  my  death  John  Sul- 
livan." i«« 

A  memorandum  on  the  back  of  a  gas  bill  began :    "It  is  my 

wish,"  then  followed  a  list  of  names,  and  after  each  name  a 

schedule  of  property.      This  was  held  to  be  a  valid  w-:il.   it 

being  possible  to  identify  the  persons  and  the  property.^''"' 

So  entries  in  a  diary  may  amount  to  a  will.^*^* 

An  instrument  which  describes  a  tract  of  land  and  provide? 

102  Byers  v.  Hoppe,  61  Md.  20G ;  mo  Sullivan's  Estate,  130  Pa.  St. 
48  Am.  Rep.  89.                                             •'542. 

103  Hunt  V.  Hunt,  4  N.  H.  434.  i"t  In  re  Gaston's  Estate,  188  Pa. 
lo-t  Fosselman    v.    Elder,     98     i'a.       St.  374. 

g|.    jgg  108  Keagaji  v.  Stanley,  11  Lea.  313. 

105  Fozer  v.  Jackson,  164  Pa.  St. 
373. 


62  LAW    OF    WILLS. 

"I  have  requested  my  executors  to  give  a  clear  deed  for  tke 
property  after  my  death"  to  A,  was  held  a  valid  will.^^^ 

A  letter  may  be  a  valid  will,  if  it  shows  a  present  intent  to 
dispose  of  the  property  of  the  writer  at  his  death.^^"  But  an 
acknowledgment  of  a  claim,  while  it  may  Le  valid  as  evidence 
of  such  claim,  is  not  a  will.-^^^  Thus  a  letter  containing  the 
following:  "You  can  put  in  your  claim  against  my  estate  for 
$500  which  I  hereby  acknowledge  owing  you,"  was  held  not 
to  be  testamentary  in  its  nature.^ ^^ 

And  a  letter  not  written  in  contemplation  of  death  which 
contained  these  words :  "My  health  is  probably  ruined  and 
I  want  to  anticipate  possibilities.  You  and  your  children  get 
everything,"  was  held  not  to  be  testamentary,  but  simply  a 
statement  as  to  the  sort  of  will  that  the  writer  intended  to 
make.-^^^ 

§59.     Precatory  words. 

Since  a  testator  is  not  obliged  to  use  any  set  form  of  words, 
it  follows  that  he  may  put  his  intention  in  the  form  of  a  request 
or  a  recommendation.  x\s  long  as  it  is  a  statement  in  legal 
form  of  his  wish  concerning  the  disposition  of  his  property, 
the  appointment  of  an  executor  of  his  estate  or  a  guardian  of 

109  Webster       v.       Lowe       (Ky.)  Cowley  v.  Knapp,  42  N.  J.  L.  297; 

(1899),   53   S.   W.    1030.      Compare  Knox's    Estate,    131    Pa.    St.    220; 

Young's      Estate,      123      Cal.      337,  Scott's    Estate,     147     Pa.     St.     89; 

where      there      was      no      descrip-  Fouche's   Estate,    147    Pa.    St.    395 ; 

tion      of      the      property      to      be  Reagan  v.  Stanley,  11  Lea.   (Tenn.) 

conveyed,       and       such       provision  316. 

failed.  Other  cases  on  this  point  are  no  Cowley  v.  Knapp,  42  N.  J.  L. 

Mitchell  V.  Donahue,  100  Cal.  202;  297. 

Jackson  v.  Jackson,  6  Dana    (Ky.)  m  O'Neil's  Estate,  73  Minn.  266. 

257;     Kelliher   v.   Kernan,    60   Md.  112  O'Neil's  Estate,  73  Minn.  266; 

440;   Leathers  v.  Greenacre,  53  Me.  76  N.  W.  27. 

56:".;    Barney    v.    Hayes,    11    Mont.  ns  Kichardson's    Estate,    94    Cal. 

571;     Belcher's    Will,    66    N.    Car.  03.     See  Sec.  48. 
51;  Brown  v.  Eaton,  91  N.  Car.  26; 


LAW    OF     WILLS.  6o 

his  children,  it  will  be  treated  as  his  will.  There  is  no  dispute 
about  this  rule  of  law.'^'* 

There  is,  however  considerable  practical  difficulty  in  deter- 
mining in  a  given  case  whether  the  words  used  are  dispositive 
or  merely  precatory.  This  is  a  question  of  construction  and 
is  given  here  solely  for  convenience.  The  test  is  this :  does  the 
testator  mean  by  his  language  to  control  the  disposition  of  his 
property  ?  If  so,  it  is  his  will,  no  matter  how  mildly  the  wish 
is  expressed.  Or  does  he  simply  indicate  what  he  regards  as 
a  wise  disposition,  leaving  however  to  the  person  taking  the 
legal  title  to  the  property  full  discretion  to  dispose  thereof.  If 
so,  it  is  not  his  will.^^^  Thus  a  statement  "I  wish  X  to  have, 
etc.,"  is  treated  as  a  will;^-^^  while  a  statement  that  a  certain 
instrument  disposing  of  property  was  not  intended  "as  a  legal 
will  but  as  a  guide"  shows  that  the  instrument  was  not  a 
will;^^'^  and  a  gift  to  A  providing  that  she  is  to  give  B  a  cer- 
tain sum  "at  her  Pleasure  if  (she)  feel  dispose  to  do  so,  but 
it  is  not  obligatory,"  was  held  to  leave  the  gift  to  B  entirely 
in  A's  discretion. ^^^ 

Words  which  are  milder  than  commands  or  positive  dispo- 
sitions of  testator's  property  are  known  as  precatory  words. 
This  term  is  not  an  extremely  technical  one.  Indeed,  the  word 
precatory  is  used  quite  impartially  of  words  which  though  mild 
in  form  are  held  to  be  dispositive,  and  of  words  which  are  held 
not  to  be  dispositive  but  to  constitute  suggestions  merely  to  be 

ii-tCock  V.  Cooke,  1  Prob.  &  Div.  tleppart,    83    lo.    497;     Mitchell    v 

241;     Abend    v.    Endowment    Fund  Mitchell,      143      Ind.      113;      Hal 

Commission,    174    111.    96     affirming  sey      v.      Convention      of      P.      E 

74   111.   App.   054;    Ingraham  v.   In-  Church,  75  Md.  275;  Aldrich  v.  Al 
graham,  169  111.  432;  Black  v.  Her-  _   drich,    172    Mass.    101;    Durant    v 

ring,   79  Md.   146;   Murphy  v.   Car-  Smith,  159  Mass.  229;  Fairchild  v, 

lin,  113  Mo.  112;  Cox  V.Wills,  49  N.  Edson,    154    N.    Y.    199;    Whelen's 

J.  Eq.  130,  573;  Forster  v.  Winfield,  Estate,   175  Pa.  St.  23. 
142  N.  Y.  327;  Knox's  Appeal,  131  ne   Cock  v.  Cook,  L.  R.  1  P.  &  D. 

Pa.   St.   220;    Oyster  v.   Knull,   137  241.    /ji  re  Gaston's  Estate,  188  Pa. 

Pa.   St.  448.  St.   374;   41   Atl.   529. 

115 /?t    re    Williams    1897,    2    Ch.  n'^    Ferguson-Davie  v.   Ferguson- 

Div.  12;  In  re  Hamilton,  1895,  2  Ch.  Davie,  L.  R.  15  P.  &  D.  109. 
Div.   370;    12  Rep.   355;   Coulson  v.  us  Eberhardt  v.  Parolin,  49  N.  J. 

Alpaugh,    163   111.   298:    Randall   v.  Eq.  570. 
Randall,   135  111.   398:   Pellizzaro  v. 


6^:  LAW     OF     WJLLS. 

carried  out  at  the  discretion  of  the  person  to  whom  thej  are 
addressed.^  ^^ 

§60.     Contingent  wills. — What  wills  are  included. 

The  subject  of  contingent  wills  is  one  which  might  be  classed 
under  construction,  as  many  of  the  cases  involve  the  question 
whether  the  will  is  contingent  or  not;  or  under  restraints  on 
testamentary  power,  as  many  of  the  cases  involve  the  ques- 
tion whether  the  law  will  permit  such  dispositions.  But  the 
question  of  testamentary  intent  is  also  involved.  It  is  often  a 
question  whether  under  the  circumstances  the  testator  intended 
the  instrument  as  a  disposition  of  his  property  or  not.  This 
being  the  case,  a  fragmentary  treatment  of  this  subject,  though 
perhaps  more  logical  than  the  present  method,  seems  so  unsat- 
isfactory that  at  this  point  a  discussion  of  contingent  wills  in 
detail  is  given. 

A  will  is  said  to  be  contingent  when  the  testator  has,  in  such 
will,  named  some  future  event  as  a  condition  precedent  to  his 
will's  taking  effect,  or  upon  whose  happening  the  will  never  can 
take  effect.-^  ^"  This  contingency,  furthermore,  is  one  which 
relates  to  the  whole  will.  A  contingency  which  has  effect  only 
to  defeat  certain  bequests  is  not  of  the  sort  that  we  are  con- 
sidering here.-^^^ 

§61.     Validity  of  contingent  wills. 

The  validity  of  conditional  wills  depends  upon  the  time  when 
the  condition  is  to  be  performed.  There  are  three  periods  of 
time  designated  by  testators  for  this  contingency  to  occur, 
which  will  be  discussed  in  order,  namely:  (1)  during  testator's 
life,  (2)  after  his  death  before  probate,  and  (3)  after  probate. 

(1)  If  the  condition  is  to  be  performed  before  the 
death    of  the  testator,    full    effect    is  given  to    the    condition, 

119  For   the   subject   of   Precatory  121  For     such     contingencies     see 

Words    Creating    Trusts    see    Sees.       Chap.  XXXI. 
611,  612. 

^20  Damon    v.    Damon,    8     Allen 
.(Mass.)    192. 


LAW    OF    WILLS.  65 

and  the  will  is  treated  as  in  force  or  not,  according  to  the  per- 
formance or  non-performance  of  tlie  condition.^ ^^  Thus  a  will 
made  by  A  to  be  in  force  if  she  should  die  before  B  is  held  not 
to  be  A's  will  where  A  died  before  B.^^^ 

(2)  Where  the  contingency  occurs  after  the  death  of  the  tes- 
tator, but  before  probate,  its  validity  seems  to  be  established  by 
the  general  rules  of  law,  though  the  adjudicated  cases  are  few. 
Thus  a  provision  that  a  codicil  to  a  will  should  go  into  effect 
on  approval  by  testator's  wife  was  given  full  effect,  and  as  she 
declined  to  approve  the  codicil,  it  was  refused  probate.^ ^"^ 

(3)  Where  the  contingency  is  delayed  till  after  the  pro- 
bate, the  court  can  not  declare  the  instrument  to  be  the  last 
will  and  testament  of  deceased,  for  that  would  ignore  his  in- 
tention, which  plainly  is  that  the  instrument  is  to  be  his  will 
only  on  the  happening  of  the  named  event.  Nor  can  the  ques- 
tion of  the  validity  of  the  will  be  postponed  until  the  happen- 
ing of  an  event  which  may  be  delayed  for  years.  The  policy 
of  our  laws  requires  a  prompt  settlement  of  the  estates  of  de- 
cedents. While  the  authorities  on  this  point  are  few,  they 
hold,  in  accordance  with  the  views  here  stated,  that  if  the  will 
is  not  by  its  terms  clearly  and  absolutely  by  the  will  of  decedent 
when  offered  for  probate,  it  should  never  be  given  effect.^ -"^ 

122  in  re  Cuno,  L.  R.  43  Ch.  D.  wiiich  were  to  be  performed  after 
12;  Tarver  V.  Tarver,  9  Pet.  (U.  S.)  the  death  of  testator  and  before 
174;  Dougherty  v.  Dougherty,  4  ))robate,  upon  which  the  validity  of 
Met.  (Ky.)  25;  Likefield  v.  Like-  the  will  depended,  is  found  in  the 
field,  82  Ky.  5&9 ;  Magee  v.  McNeil,  common  law  rule  as-  to  the  va- 
41  Miss.  17;  Robnett  v.  Ashlock,  lidity  of  the  will  of  a  married 
49  Mo.  171;  Morrow's  Appeal,  116  woman.  The  validity  of  such  a  will 
Pa.  St.  440.                                             -  was    contingent    upon    the    consent 

123  7,2,  re  Cuno,  L.  R.  43  Ch.  D.  of  the  husband  which  might  be  giv- 
12.  en  or  withhold  at  any  time  before 

124  Dudley  V.  Weinhart,  93  (Ky.),  probate. 

402;    20    S.    W.    308;    14   Ky.    Law  i2r,  i  Jarman  on  Wills.  17;  Cxoods 

Rep.  434;  Ingersoll's  Estate,  167  Pa.  of  Cooper,   Dea.  and   Sw.  9:   Goods 

St.   536.     An   analogy  to  the   rule  of  Smith,  L.  R.  1  P.  &  D.  717. 
allowing   conditions   to   be   imposed 


66  LAW     OF     WILLS. 

§62.     Examples  of  contingent  wills. 

A  question  often  presented  in  the  discussion  of  this  subject 
is,  whether  the  language  of  a  given  will  is  conditional  or 
whether,  without  imposing  a  condition,  it  recites  the  circum- 
stances which  induce  testator  to  make  his  will.  This  is  another 
instance  of  construction,  but  is  for  convenience  given  here.  It 
must  be  conceded  at  the  outset  that  the  courts  are  not  harmoni- 
ous in  their  views  of  similar  expressions  used  in  different  wills. 

English  Cases. — Thus  Hvhere  the  testator  wrote  "Should 
anything  unfortunately  happen  to  me  while  abroad,  I  wish, 
etc.,"  it  was  held  to  be  a  conditional  will ;  and  as  the  testator 
had  returned  from  abroad,  the  will  was  of  no  effect.^  ^^  So 
also,  where  the  will  contained  the  clause  "If  I  die  before  I  re- 
turn from  Ireland."  ^^"^ 

American  Cases. — A  testator  wrote  "I  am  going  to 
town  with  my  drill  and  am  not  feeling  good,  and  in  case  I  should 
not  get  back,  etc."  He  went  to  town,  became  ill,  was  brought 
home  and  soon  died.  It  was  held  that  the  will  was  conditional 
and  hence  avoided  by  the  return  of  the  testator.^ ^^  Where  a 
Kentucky  testator  wrote  "as  I  intend  starting  in  a  few  days  for 
the  State  of  Missouri,  and  should  anjiihing  happen  that  I 
should  not  return  alive,"  it  was  held  a  conditional  will.^^^  So 
was  a  will  made  by  a  Missouri  testator,  "I  this  day  start  for 
Kentucky ;  I  may  never  get  back.  If  it  sliould  be  my  misfor- 
tune, etc.,"^^*^  and  a  will  "If  I  never  get  back  home  I  leave  you 
everything  I  have  in  the  Avorld."^^^ 

126  Goods  of  Porter,  L.  R.  2  P.  &  i30  Robnett  v.  Ashloek,  49  Mo. 
D.  22,  and  cases  cited  there.  171. 

127  Parsons  v.  Lanoe,  1  Ves.  Sr.  i^i  Maxwell  v.  Maxwell,  3  Met. 
189;Amb.  557.  (Ky.)     101;    Likefield    v.    Likefield. 

128  Morrow's  Appeal,  116  Pa.  St.  82  Ky.  589. 

440.    A  similar  case  is  Magee  V.  Me-  ("If  anything  happens  to  me  that 

Neil,  41  Miss.  17.  I  die  away  from  home,  my  wife  to 

120  Dougherty     v.     Dougherty,     4  have  everything.") 
Met.    (Ky.)    25. 


67 

LAW     OF     WILLS.  "• 

§63.     Examples  of  wills  held  not  contingent. 

In  cases,  many  of  which  are  closely  analogous  to  those  just 
cited,  similar  language  has  been  held  to  be  a  statement  of  the 
reasons  which  induced  testator  to  make  his  will.  Hence  these 
wills  are  valid  even  though  the  event  spoken  of  has  occurred 
in  such  a  way  that  the  will,  if  conditional,  would  be  avoided.   ^ 

English  Cases.— A  will  contained  the  words :  "Being  physi- 
cally weak  in  health,  have  obtained  permission  to  cease  from  all 
duty  for  a  few  days  ...  in  the  event  of  my  death  occurring 
during  such  time.  .  .  ."  It  was  held  not  to  be  a  conditional 
will.^^2  So  there  was  a  similar  holding  where  the  will  con- 
tained the  words  "in  case  of  my  death  by  the  way"^=^^  or  "in 
case  of  any  fatal  accident  happening  to  mc,  being  about  to 
travel  by  railway."  ^^^ 

American  Cases.— A  will  was  held  not  to  be  conditional 
where  it  contained  the  words  "Being  about  to  take  a  long 
journey  and  knowing  the  uncertainty  of  life";  ^^^  or  where  it 
was  expressed  "Should  anything  happen  to  me  before  I  reach 
St.  Louis."  ^^'^  The  most  extreme  of  the  American  cases  is  the 
following,  in  which  a  provision,  "If  I  get  dro^vned  this  morning, 
March  7,  1872,  T  bequeath,  etc,"  was  held  not  to  be  a  condition, 
but  a  narration  of  the  facts  which  led  testator  to  make  his  will 
at  that  time.^^'^ 

§64.     Contingency  applying  to  only  part  of  will. 

It  sometimes  happens  that  the  coiitingency  applies  to  one  or 
more  clauses  of  the  will.  They  are  to  be  valid  or  not  according 
to  the  outcome  of  the  event;  the  rest  of  the  will  is  absolute. 
Thus  a  testator  began  his  first  bequest  "First,  if  by  casualty  or 
otherwise  I  should  lose  my  life  during  this  voyage,  I  give,"  etc. 

132  Goods  of  Martin,  L.  R.  1  P.  &  ^'^  Bx  parte  Lindsay,  2  Bradf. 
D    380  (N-  ^-^   204. 

133  In  re  Mayd,  6  P.  D.  17.  "^  French  v.  French,   14   W.  Va. 

134  In  re  Dobson,  L.  R.  1  P.  &  D.  458. 
88. 

135  Tarver   V.   Tarver,   9   Pet.    (U. 

S.)    174. 


68  LAW     OF    WILLS. 

Tke  subsequent  bequests  contained  no  mention  of  any  condi- 
tions. It  was  held  that  the  first  bequest  only  was  condi- 
tional.-^ ^'^  In  such  cases  the  will  is,  of  course,  unaffected  as  a 
whole  by  the  failure  of  specific  bequests.^ ^^ 

So  the  conditional  appointment  of  an  executor  followed  by 
an  unconditional  l3equest,  leaves  the  bequest  unaffected  by 
the  condition.-^ '*^  The  courts  prefer  to  construe  a  will  as  having 
contingent  bequests  rather  than  as  being  contingent  as  a 
whole.-^^^ 

13S    Damon    v.    Damon,    8    Allen  36;  66  L.  J.  P.  D.  &  A. ;  N.  S.  29; 

(Mass.)     192.      A    similar    case    is  75  Law  T.  Rep.  520. 

Massie  V.  Griffin,  2  Met.   (Ky.)   364.  i-ii  Damon    v.     Damon,     8     Allen 

139     Damon    v.    Damon,    8    Allen  (Mass.)    192;    Ex  parte  Lindsay,  2 

(Mass)  192.    See  Sec.  674.  Bradf.  (N.  Y.)  204. 

"oHalford  v.  Halford   [1897]   P. 


AQ 

LAW     OF     WILLS.  ""^ 


CHAPTER  VI. 

JOINT    AND   MUTUAL   WILLS. 
§65.     Wills  not  included  under  this  chapter. 

In  order  to  define  clearly  the  topic  treated  of  in  this  chapter, 
it  is  necessary  to  begin  with  the  negative  proposition  that  cer- 
tain types  of  will  must  not  be  confused  with  joint  and  mutual 
wills  (and  are  not  duscussed  in  this  chapter).  Of  these  types 
which  might  be  confused  with  joint  and  mutual  wills,  the  most 
common  are  the  following: 

1.  A  will  which  is  signed  by  some  person  in  addition  to 
testator,  but  which  disposes  only  of  the  property  of  the  testator, 
and  expresses  only  his  wishes,  is  neither  a  joint  nor  a  mutual 
will.  It  differs  in  no  way  from  an  ordinary  will  of  the  common 
type,  and  the  additional  signature  is  treated  as  surplusage.^ 

2.  Where  two  or  more  testators  prepare  and  execute  separ- 
nle  wills  and  do  not  in  so  doing  act  in  pursuance  of  any  contract 
existing  between  them  such  wills  are  neither  joint  wills  nor 
mutual  wills.  The  fact  that  the  wills  were  executed  at  the 
same  time  and  that  the  provisions  of  the  wills  show  that  the; 

i/n  re  Smith.  L.  R.   15  P.  D.  2 ;  sifinecl    the    will     of    the   husband, 

Mosser  v.  Alosser,  32  Ala.  551  :  Rog-  below    his    signature,    probably   un- 

ers,    Appellant,    11    Me.    (2   Fairf.)  der   an  erroneous  view  of  the  law, 

303;  Chaney  v.  Missionary  Soc.,  28  thinking    such    signature    necessary 

Til.    App.    621 ;    Allen   v.    Allen,    28  to  validate  the  instrument.     So  in 

Kan.  18 ;  Smith  v.  Holden,  58  Kan.  Byles  v.  Cox,  74  Law  T.  Rep.  222.  a 

535:     50     Pac.     447;     Kunnen     v.  witness  by  inadvertence  signed  above 

Zurline,    2     C.     S.     C.     R.     (Ohio)  testator. 
440.       In     these     cases     the     wife 


70  LAW     OF     WILLS. 

testators  had  a  common  purpose  and  were  inspired  by  similar 
motives  will  not  make  the  wills  joint  or  mutual.  They  wii7 
be  treated  as  the  respective  wills  of  the  several  testators.^ 

^66.     Wills  included  under  this  chapter. — Classification. 

The  types  of  wills  which  are  here  discussed  are  compara 
tively  easy  to  separate  one  from  the  other.  The  names  of  these 
tvpes  are  unfortunately  not  so  clearly  established.  The  courts 
have  been  in  recent  years  comparatively  harmonious  in  apply- 
ing principles  of  the  law  to  these  types  of  will,  but  they  have 
not  been  harmonious  in  applying  names  to  them. 

The  simplest  and  crudest  method  of  classifying  wills  oil 
this  basis  is  as  to  outward  form.  If  the  common  intention  is 
expressed  in  one  instrument  which  is  signed  and  executed  by 
both  the  testators,  the  will  may  be  called  a  joint  will  :^  v/hile  if 
the  testators  have  executed  two  separate  instruments  to  mani- 
fest their  common  intention,  the  will  may  be  called  a  mutual 
will;  ^  and  if  this  common  intention  is  that  the  propf  j  ty  of  the 
one  dying  first  shall  go  to  the  survivor,  it  may  be  termed  a 
mutual  or  reciprocal  will.^  This  classification  is  net  adequate, 
as  it  is  based  purely  on  the  form  in  which  the  testamentary 
intention  may  be  expressed,  but  it  is  often  adopted  by  the 
courts.  As  to  the  substance  of  these  wills  the  following  classifi- 
cation may  be  suggested : 

1.  The  will  by  which  the  one  dying  first  leaves  his  property 
to  the  survivor  or  survivors,  whether  this  is  done  by  one  will 
executed  by  all  the  testators  or  by  separate  wills  executed 
separately.®      Some  of  the  courts  have  termed  this  a  double 

2Edson    V.    Parsons,    155    N.    Y.  v.     Schmidt,    44     Ala.    454;     Lewis 

555:    50    K    E.    2G5 ;    affirming    32  v.  Scofield,  2G  Conn.  4,52;   Evans  v. 

N.  Y.  S.  102fi;   85  Hun,  2G3.  Smith,   28   Ga.   98;    Black  v.   Rich- 

3  In  re  Davis'  Will,   120  N.  Car.  ards,  95  Ind.  184 ;  In  re  Diez's  Will, 

9;   2G   S.  E.  G36;   Betts  v.  Harper,  50  N.  Y.  88;   March  v.  Huyter,  50 

39  O.   S.   639;   Wyche  v.  Clapp,  43  Tex.    243.      For    case   where    inten- 

Texas  544.  tion  is  expressed  in  separate  wills. 

4Edson     V.     Parsons,    155    N.    Y.  Edson  v.   Parsons,    155   N.   Y.   555; 

555,  supra.  50  N.  E.  2G5 ;  affirming  32  N.  Y.  S. 

5  7n  re  Diez's  Will,  50  N.  Y.  88;  103G;    85    Hnn,    263.      The    expres- 

March  v.  Iluyter,  50  Tex.  243.  sion  of  judicial  opinion  in  this  case 

8  For    cases    where    intention    is  is  undoubtedly  an  ohitei-,  but  a  very 

expressed   in   one   will.      Schumaker  clear  and  weighty  obiter. 


LAW     OF     WILLS. 


71 


will,"  and  other  courts,  wliilo  applying  the  same  legal  princi- 
ples' refuse  to  recognize  such  will  as  even  a  mutual  will,  but 
prefer  to  style  it  the  separate  will  of  each.«  When  such  an 
intention  manifests  itself  in  separate  wills  they  are  sometimes 
spoken  of  as  concurrent  or  rc-ciprocal  wills.'-^ 

2  The  will  bv  which  the  testators,  in  separate  clauses,  dis- 
pose of  their  several  interests  in  the  execution  of  a  common 

intention.^ *^  .  . 

3  The  will  bv  which  the  testators  jointly  devise  their  joint 
interests  to  third^persons  or  by  which  they  treat  their  separate 
propertv  as  a  common  fund  out  of  which  they  provide  lor 
third  persons.    A  will  of  this  kind  is  often  termed  a  ynnt  will. 

4  The  will  which  is  a  composite  of  the  foregoing  types; 
that  is,  which  provides  in^part  for  third  persons  and  m  part 
provides  for  the  survivor.^^  i     .     u    f 

5  The  will  which  differs  from  the  third  class  only  m  that 
it  specifically  directs  that  it  shall  not  take  eflect  till  the  death 
of  the  survivor  of  the  testators.^  ^ 


7  Evans  v.  Smith,  28  Ga.  98  ;  Caw- 
ley's   Estate,   136   Pa.   St.   628.     In 
the  latter  case  the  will  was  as  fol- 
lows :    "I,  A.  B,  should  I  be  the  first 
to  die,   and  I,  C.   D.,   should   I   be 
the  first  to  die,  give,  devise  and  be- 
queath, and  to  the  survivor  of  either 
of  us"  all  the  estate  of  the  decedent. 
8ln   Schumaker  v.  Schmidt,  44  Ala. 
454  the  will  was  as  follows:      "In 
event    of    the  death    of    either  one 
of  us  the  survivor  shall,  after  such 
death,  pay  all  the  expenses  of  sick- 
ness  and   burial    and   whatever   ex- 
penses of  the  estate  may  be  due  by 
proof.     Second,   the   survivor    shall 
enter  into  the  possession  of  the  es- 
tate  of    the   other    and    shall    hold 
it  for  his  own  sole  use  and  benefit." 
The    court   said:     "The   will    under 
consideration,  though  made  by  two, 
is  not  a   joint  will   because  by   its 
terms  it  can  only  be  the  will  of  him 
who  dies  first.     Though  classed  un- 
der the  general  denomination  of  mu- 
tual wills,   it   is   not   in   fact   such. 


because  by  its  terms  it  can  be  the 
will  only  of  him  who  dies  first.  It 
is  therefore  the  separate  will  of 
the  first  decedent."  Similar  views 
are  expressed  in  Lewis  v.  Scofidd, 
26  Conn.  452. 

0  Coleman's  Estate,  185  Pa.  St. 
437;  Gordon  v.  Whitlock,  92  Va. 
723. 

10  In  re  Davis'  Will,  120  N.  Car. 
0;  Appeal  of  Hodges,  26  S.  E.  636. 

( [n  this  case  the  exact  facts  do  not 
appear  on  the  record.)  Ex  parte 
Day,    1    Bradf.    (N.    Y.)    476. 

11  hi  re  Raine,  1  Sw.  &  Tr. 
144;  Hill  v.  Harding,  92  Ky.  76; 
Keith  v.  Miller,  174  HI.  64;  51  N. 
E.  151:  Bctts  V.  Harper,  39  O.  S. 
630:   Wycho  v.  Clapp,  43  Tex.  544. 

12  Bank  v.  Bliss,  67  Conn.  317 ; 
35  Atl.  255;  Black  v.  Richards.  95 

Ind.  184. 

13  Hershey  v.  Clark,  35  Ark.  1 1  : 
37  Am.  Rep.  1:  Bank  v.  Bliss,  67 
Conn.  317  ;  35  Atl.  255. 


72  LAW    OF    WILLS. 

§67.     Validity  of  joint  and  mutual  wills. 

The  early  view  of  text-book  ^vriters  was  that,  as  a  general 
proposition,  joint  and  mutiuil  wills  were  alike  invalid.^'*  This 
view  was  based  upon  the  language  of  some  early  English  de- 
cisions,^^ and  found  justification  in  the  early  American  de- 
cisions.^^ The  only  favor  shown  was  to  the  type  of  will  known 
as  the  mutual  or  reciprocal  will.^'^ 

The  early  English  cases  which  were  invoked  to  support  the 
doctrine  of  the  invalidity  of  joint  and  mutual  wills  were  Earl 
of  Darlington  v.  Pulteny,  1  Cowp.  260,  and  Hobson  v.  Black- 
burn, 1  Add.  277.  In  each  of  these  cases  were  obiter  dicta, 
which  undoubtedly  seem  to  treat  such  wills  as  invalid,  but 
which  really  have  no  such  meaning  when  applied  to  the  facts 
of  the  particular  cases.  In  Earl  of  Darlington  v.  Pulteny.  1 
Cowp.  260,  the  question  was  whether  a  power  to  two  persons 
to  limit  an  estate  by  deed  could  be  executed  by  the  will  of  the 
survivor.  The  court  held  that  such  a  power  could  not  so  be 
executed,  as  the  act  was  to  be  performed  jointly,  and  it  was  not 
possible  for  a  will  to  be  joint  in  the  sense  that  it  took  effect 
as  to  the  wishes  of  each  testator  only  at  his  death.  Hobson  v. 
Blackburn  decided  nothing  more  than  that  a  mutual  will  might 
be  revoked  by  either  of  the  testators  as  to  his  o-wn  estate  by  a 
later  will.  The  modern  view  is  that,  as  a  general  proposition, 
joint  and  mutual  wills  are  valid.^^ 

1*  Williams  on   Executors,  pp.   9,  disposing   of   the   estate  of   each   to 

104.  her    sister    in    case    of    her    surviv- 

15  Earl  of  Darlington  v.  Pulteny,  ing  her." 

1  Cowp.  200 ;  Hobson  v.  Blackburn,  is  Schumaker  v.  Schmidt,  44  Ala. 

1  Add.  274;  2  Eccl.  Rep.  116.  454;    Lewis    v.    Scofield,    26    Conn. 

leClaj'ton  v.  Liverman,  2  Dev.  &  4.52;    Evans   v.    Smith,   28    Ga.    98; 

B.   (N.  Car.),  558;  Walker  v.  Wal-  Black    v.    Richards,    95    Ind.    184; 

ker,    14    O.    S.    157;    82    Am.    Dec.  Breathitt  v.   Whittaker,  8   B.   Mon. 

474.  (Ky.)     530;     Hill    v.    Harding,    92 

17  In  Lewis  v.   Scofield,  26  Conn.  Ky.  76;  In  re  Davis's  Will,  120  N. 

452,  the  court  said:  Car.  9;  In  re  Diez's  Will,  50  N.  Y. 

"Although  in  point  of  form  it  is  88;    Ex    parte   Day,    1    Bradf.     (N. 

a  joint   will,   executed   by   two,   yet  Y. )   476;   Betts  v.  Harper,  39  O.  S. 

as  it  disposes  only  of  the  estate  of  641 ;    Cawley's   Estate,    136   Pa.   St. 

the  one  who  may  first  die,  its  legal  628 :  Wyche  v.  Clapp,  43  Tex.  544 ; 

operation,   if  valid,  is  the   same  as  March  v.  Huyter,  50  Tex.  243. 
if  each   had  made  a   separate  will, 


LAW     OF     WILLS. 


73 


The  early  English  cases  have  been  re-discussed,  with  the 
result  that  modern  courts  have  declared  that  the  early  text-book 
writers  and  American  courts  misunderstood  them/^  and  the 
early   American   cases   holding  such   wills   invalid  have   been 

overruled."'^ 

In  jurisdictions  where  a  married  woman  may  make  a  will, 
husband  and  wife  may  make  a  joint  will/^ 

The  single  instance  in  which  modern  courts  are  still  in- 
clined to  treat  wills  of  these  classes  as  invalid  is  the  type  of 
will  in  which  the  testators  have  joined  in  one  instrument  in 
a  complete  scheme  for  the  disposition  of  their  joint  property, 
or  of  their  separate  property  treated  as  a  joint  fund,  and  have 
fixed  the  death  of  the  survivor  as  the  time  for  such  will  to 
take  effect.^^ 


19  In  re  Davis's  Will,  120  N.  Car. 
<J;  26  S.  E.  630. 

20  In  Clayton  v.  Liverman,  2  Dev. 
&  B.  (N.  Car.),  558,  the  majority 
of  the  court  held  that  a  joint  or 
mutual  will  was  not  recognized  by 
our  law,  resting  iipon  Hobson  v. 
Blackburn,  1  Add.  274;  2  Eccl. 
Kep.  116,  as  construed  by  the  ma- 
jority. Daniel,  J.,  dissented,  hold- 
ing that  the  majority  of  the  court 
misapprehended  Hobson  v.  Black- 
burn. In  the  case  In  re  Davis's 
Will,  120  N.  Car.  9;  26  S.  E.  636, 
the  court  held  that  the  dissenting 
opinion  of  Daniels,  J.,  was  right, 
both  as  to  its  view  of  the  law  and 
as  to  its  construction  of  Hobson  v. 
Blackburn,  and  accordingly  the 
opinion  of  the  majority  in  Clayton 
V.  Liverman  was  overruled. 

W^alker  v.  Walker,  14  O.  S.  157, 
holding  that  joint  wills  are  invalid, 
has  never  been  formally  overruled; 
but  the  later  case  of  Betts  v.  Har- 
per, 39  O.  S.  641;  48  Am.  Rep. 
477,  was  decided  upon  a  similar 
state  of  facts  and  upheld  the  valid- 
ity   of    the    joint    will.      In    it    the 


court  referred  to  Walker  v.  Walker 
as  decided  upon  the  theory  that  the 
instrument  in  question  in  that  case 
was  really  a  contract  enforceable 
in  equity  and  not  a  will  to  be  pro- 
bated. 

21  March  v.  Huyter,  50  Te.K.  243. 
22Hershy   v.    Clark,    35   Ark.    17; 
37  Am.  Rep.  1 :  State  Bank  v.  Bliss, 
67  Conn.  317  :  35  Atl.  255. 

In  Bank  v.  Bliss  the  court  said: 
"The  will  is  partly  a  joint  and 
partly  a  mutual  one.  Each  tes- 
tatrix executed  it  as  the  will  of 
both  and  in  order  to  accomplish 
a  common  purpose.  Its  form  would 
indicate  that  it  was  originally  draft- 
ed as  a  joint  will  only,  and  that  the 
reciprocal  provisions  and  contin- 
gent residuary  gift  to  their  next  of 
kin  found  in  the  classes  numbered 
from  5  to  8  were  subsequently  in- 
serted. A  will  strictly  mutual  is, 
in  legal  effect,  nothing  but  the  in- 
dividual will  of  that  one  of  the  tes- 
tators who  may  die  first.  Lewis 
v.  Scofield,  26  Conn.  452.  To  give 
such  a  construction  to  the  will 
now  under   consideration  would   do 


74  I.AW     OF     WILLS. 

§68.     When  admissible  to  probate. 

There  is  no  dispute  as  to  the  admissibility  to  probate  of 
wills  of  the  first  and  second  types,  by  which  (a)  the  survivor 
is  to  take  the  property  of  the  one  dying  first,  or  (&)  by  which 
separate  interests  are  disposed  of  in  separate  clauses.  Such 
wills  are  to  be  admitted  to  probate,  if  in  other  respects  regidar, 
upon  the  death  of  the  first  testator,  as  his  will.^^ 

As  to  wills  of  the  third  type — those  by  which  the  testators 
jointly  devise  their  joint  interests  to  third  persons,  or  treat  their 
separate  property  as  a  common  fund  out  of  which  they  pro- 
vide for  third  persons — there  has  been  more  diversity  of 
opinion.  The  great  weight  of  authority  is  that  the  will  of  this 
type  is  to  be  probated  on  the  death  of  each  testator  as  the 
separate  will  of  decedent,^^  and  that,  as  said  before,  if  this 
can  not  be  done,  the  instrument  should  be  refused  probate  as 
a  will  altogether.^^  This  last  rule  seems  to  rest  upon  sound 
policy.  The  funeral  expenses  and  debts  of  the  decedent  should 
be  paid  as  soon  as  is  practicable,  and  the  estate  settled.  To 
delay  such  payment  until  the  death  of  some  one  other  than 

violence  to  its  terms.     It  purports  per,  39  0.  S.  G39 ;  Wyehe  v.  Clapp, 

to  be  a  joint  act.     It  creates  a  com-  43  Tex.  544. 

mon  fund,  out  of  which   the  debts  In    Wyche    v.    Clapp,    supra,    the 

of   each    and   her    funeral    expenses  court  said: 

are    to    be    met,    and    legacies    to  "The  weight  of  authority  is  that 

third  parties  paid;   and  it  provides  they    (i.  e.,  joint  or  mutual  wills) 

against  its  probate  until  both  mak-  may  be  admitted  to  probate  on  the 

ers  are  dead,  after  making  each  the  decease    of    either    of    the    parties 

residuary  legatee  of  the  other.  This  as  his  will  if  otherwise  unobjection- 

scheme   is   one   which    it    is    impos-  able.     But  from  the  very  nature  of 

sible  to  carry  out,  and  its  various  such  an  instrument  it  can  not  oper- 

parts  are  so  related  to  each  other  ate  or  have  effect  as  the  joint  or  mu- 

that   they    must    stand   or    fall    to-  tual   will   of   the   parties   if   one  of 

gether."  them  survives,  for  during  such  time, 

23  Schumaker  v.  Schmidt,  44  Ala.  if  it  is  a  will,  it  is  subject  to  re- 
454;    Lewis    v.    Scofield,    26    Conn.  vocation." 

452;    In   re  Diez's   Will,   50   N.   Y.  25  Hershy  v.   Clark,    35   Ark.    17; 

88;   March  v.  Huyter,  50  Tex.  243.       37   Am.  Rep.   1;    Bank  v.   Bliss,   67 

24  Evans    v.    Smith,    28    Ga.    98;       Conn.   317;    35   Atl.  255. 

Hill  V.  Harding,  92  Ky.  74;   Keith  Wills  of  this  form  are  really  wills 

v.  Miller,  174  111.  64;  In  re  Davis's       of  the  fifth  type. 
Will,   120  X.  Car.  9:   Betts  v.  Har- 


LAW    OF     WILLS.  t  O 

testator — an  event  wliicli  may  not  occur  for  years — would 
make  the  prompt  and  orderly  settlement  of  decedent's  estate 
impossible. 

It  must,  however,  be  admitted  that  there  are  some  early  cases 
which  recog-nize  the  validity  of  the  joint  will,  in  which, it  is 
intimated  that  such  will  could  not  be  probated  until  the  death 
of  both  testators.-^ 


§69.     Revocability  of  joint  and  mutual  wills. 

The  weight  of  authority  is  to  the  effect  that  joint  and  mutual 
wills  are  as  revocable  as  wills  as  other  wills  are.-^  Thus,  a 
will  executed  by  two  parties  disposing  of  their  separate  prop- 
erty to  the  survivor  for  life  is  revocable  by  either  at  his  op- 
tion,^^  and  so  is  a  joint  will.^^ 

If  the  joint  or  mutual  will  is  not  made  in  pursuance  of  any 
contract,  the  right  of  testator  to  revoke  it  is  beyond  question. 
If  made  in  pursuance  of  a  contract  between  testators,  such 
will  stands  on  the  same  footing  as  any  will  made  in  pur- 
suance of  a  contract,  not  a  joint  or  mutual  will ;  that  is,  the 
will  itself  may  be  revoked,  but  the  contract  in  pursuance  of 
which  the  will  was  made  may  be  enforced  in  an  action  at  law 
for  damages,  or  in  a  suit  in  equity  to  have  those  taking  the 
legal  title  after  the  death  of  the  promisor  held  as  trustees.^*^ 

In  cases  which  do  not  distinguish  clearly  between  the  will 
itself  and  the  right  of  action  on  the  contract  by  virtue  of 
which  the  will  was  made,  language  is  used  which  seems  to  say 

26  In  re  Raine,  1  Sw.  &  Tr.  144.  In      an      early      Kentucky      case 
2TWalpole  V.   Orford,   3  Ves.   Jr.  _    (Breathitt  v.  Whitaker,  8   B.  Mon. 
402;      Schumaker    v.     Schmidt,    44  533)  it  was  said  that  only  all  could 
Ala.  454;   Hill  v.  Harding,   92  Ky.  revoke   a   joint   will.     In   this   case, 
74 ;    Cawley's   Appeal,    136   Pa.    St.  however,  the  act  of  one  was  claimed 
628;    10    L.    R.    A.    93;    Wyche    v.  as   a   revocation,   and  this   act  con- 
Clapp,  43  Tex.   544.  sisted  in  tearing  the  will  and  care- 
ts Cawley's    Appeal,    136    Pa.    St.  fully  sewing  it  together. 
628 ;    10  L.  R.  A.  93.                                      so  See    Sees.    70,    76,    78,    79    and 
29  Hill  v.  Harding,  92  Ky.  74.  80. 


76  LAW     OF     WILLS. 

that  the  will  is  revocable  during  the  lifetime  of  both  parties, 
but  becomes  irrevocable  upon  the  death  of  either,  and  that  the 
revocation  during  tlie  lifetime  of  both  must  be  upon  notice  by 
the  party  revoking.^^ 

In  a  leading  English  case  a  will  was  executed  by  both  hus- 
band and  wife  and  disposed  of  their  property.  After  the  death 
of  the  husband  the  wife  had  the  will  probated,  and  then  ex- 
ecuted a  new  will.  The  court  said,  in  speaking  of  the  revo- 
cation of  this  will:  "I  can  not  be  of  the  opinion  that  either 
could  during  their  joint  lives  do  it  secretly;  or  that  after  the 
death  of  either  it  could  be  done  by  the  survivor  by  another 
will.  It  is  a  contract  between  the  parties  which  can  not  be 
rescinded  but  by  both."^^  Analysis  of  these  cases  shows  that 
they  really  decide  only  that  there  was  a  right  of  action  upon 
the  contract  to  make  a  w^ll. 

The  difficulties  presented  by  the  joint  will  of  the  type  that 
treats  the  property  of  both  testators  as  a  common  fund  are 
great,  and  the  adjudicated  cases  give  but  little  indication  as 
to  their  solution.  We  may  ignore  the  point  made,  that  the 
Statute  of  Wills  refers  entirely  to  a  will  executed  by  one  only ; 
for,  as  has  been  well  said,  the  Statute  of  Conveyances  refers 
entirely  to  conveyances  by  one  only,  but  no  doubt  has  ever  been 
entertained  of  the  validity  of  a  joint  deed.  The  difficulties 
are  deeper  than  this.  One  of  the  greatest  of  them  is  the  method 
of  settling  the  estate  of  the  first  decedent.  Inasmuch  as  the 
will  disposes  of  the  property  of  both  testators,  the  legacies  and 


31  Durfour  v.  Pereira,  1  Dick.  419.  the  Roman  Dutch  law,  not  on   the 

In  Walpole  v.  Orford,  .3  Ves.  Jr.  English    Common    Law,    and    hold 

402    (416),    Durfour   v.    Pereira    is  that    a    mutual    will    between    hus- 

spoken  of  as  a   ease  of   a  contract  band  and  wife  is  revocable  during 

to  make  a  will  enforceable  in  equity,  the  lifetime  of  both  without  notice ; 

and   as   decided  entirely   upon   that  but  that  after  one  dies  and  the  other 

theory.  receives    the    benefits    of    the    will, 

The  cases  of  Denyssen  v.  Mostert,  it    then    becomes    irrevocable    as    to 

L.  R.  4  P.  C.  23(),  and  Dias  v.  Dc;  the  survivor. 

Livera,    5    App.    123,    are    cited    on  ^2  Durfour    v.     Pereira,     1     Dick, 

this  point.     These  cases  depend  on  419. 


77 

LAW     OF     WILLS. 


devises  can  not  be  paid  entirely  out  of  the  estate  o  the  dee 
dent;  but  what  proportion  of  tl>em  U>  pay,  what  distmetion 
if  any,  between  speeific  and  pecuniary  legacies,  and  what  effect 
the  possible  ultimate  insolvency  of  the  estate  of  the  survmng 
testator  should  have  are  questions  which  will  sooner  or  later 
be  presented  for  judicial  consideration  wherever  such  type  ot 
will  is  treated  as  valid. 


78  LAW    OF    WILLS. 


CHAPTER  VII. 


THE  CONTRACT  TO  MAKE  A  WILL. 

^70.     Validity  of  contracts  to  bequeath  or  devise  and  revoca- 
bility  of  wills  made  thereunder. 

Revocability,  as  we  have  already  seen,  is  an  essential  feature 
of  a  will.  No  instrument  which  passes  a  present  interest  is  a 
will,  even  though  the  enjoyment  of  the  property  in  which  such 
interest  is  given  is  postponed  till  the  death  of  the  donor.  But 
the  testator  may  during  his  lifetime,  for  a  valuable  consider- 
ation, agree  to  bequeath  or  devise  his  property  to  certain  per- 
sons or  for  certain  purposes. 

Such  contracts  have  repeatedly  come  before  the  courts  for 
adjudication  and  have  been  held  valid  and  enforceable  as  con- 
tracts ;  ^  though  the  original  policy  of  upholding  them  has  been 

1  Jones  V.  Martin,   3  Austr.  882;  Flanders,     118     Mo.     660;     Healey 

Walpole  V.  Orford,  3  Yes.  Jr.  402;  v.        Simpson,        113       Mo.        340; 

Townsend   v.   Vanderwerker,   160  U.  Leach      v.     McFadden,       110      Mo. 

S.  171;   Bolman  v.  Overall,  80  Ala.  584:  Anderson  v.  Schockley,  82  Mo. 

451:    Manning    v.    Pippen,    86    Ala.  250 :  Burns  v.  Smith,  21  Mont.  251 : 

357;    Owens   v.    McNally,    113    Cal.  53   Pac.    742;    ioung  v.    Young,   51 

444;  Crofut  v.  Layton,  68  Conn.  91 ;  N.  J.  Eq.  491 ;  Hart  v.  Hart,  57  N.  J. 

Keith  V.  Miller,   174  111.   64;    Cavi-  E.  543;  N.  J.  42  Atl.  153;  Edson  v. 

ness  V.  Rushton,  101  Ind.  500;  Gar-  Parsons,  155  N.  Y.  555;   Phipps  v. 

ardv.Yeager.  (Ind.)  1900:  56  X.  E.  Hope,    16   O.    S.    586:    Hoffner's   Es- 

237 ;    Allbright  v.   Hannah,   103   lo.  tate,  161  Pa.  St.  331 ;  Rivers  v.  Riv- 

98;    Bird   v.    Pope,    73    Mich.    483:  ers.  3  Desaus   ( S.  Car.).  190;  Gard- 

Wricrht   V.   Wright,    99    Mich.    170 :  ner  v.  Gardner.  49  S.  Car.  62 :  Green 

Kleeburg   v.    SchradeT    (Minn.).   72  v.  Broyles,  3- Hump.    (Tenn.).   167: 

N.  W.  59:  69  Minn.  136:  Nowack  v.  Brinton  v.  Van  Cott,  8   Utah,  480. 
Berger,      133     Mo.     24:      Teats     v. 


79 

LAW    OF    WILLS. 


questioned  in  oUter  dicta?     The  enforceability  of  a  contract 
to  make  a  will  does  not,  of  course,  prevent  the  will  itself  from 
bein-  revocable.     If  it  were  irrevocable  it  would  not  be  a  wil  .•' 
The  will  itself,  though  made  in  pursuance  of  a  contract  to  make 
a  will  is,  as  far  as  the  Probate  tribunals  are  concerned,  as  re- 
vocable  as   any  other  will-    and  whatever   remedy  may  be 
.iven  must  be  by  an  action  at  law  against  testator  s  estate  for 
damages  for  breach  of  contract,  or  a  suit  in  equity  to  have  the 
heirs  and  next  of  kin,  or  the  beneficiaries  under  the  will,  it 
testator  has  left  another  will,  declared  trustees  for  the  prom- 
isee.*    Thus  the  marriage  of  testator  will  operate  as  a  revo- 
action  of  a  prior  will  made  in  pursuance  of  a  contract.^ 

A  contrary  view  was  entertained  in  a  New  York  case,  where 
an  iniunction  was  allowed  against  probating  a  will  revoking  an 
earlier  will  made  in  pursuance  of  a  contract.^  But  where  the 
will  is  a  part  of  the  contract  it  can  not  be  revoked  as  far  as  such 
contract  is  concerned.  Thus,  where  a  mortgage  and  a  will 
were  executed  simultaneously,  and  the  will  fixed  the  date  ot 
payment  of  the  debt  secured  by  the  mortgage,  it  was  held  that 
the  will  could  not  be  revoked  so  as  to  change  the  date  of  pay- 
ment of  such  debt.'^ 

2  "Whatsoever  may  be  thought  of  3  See  Sec.  50. 

the  policy  which   permits   a   person  ^  Sloniger    v.    S^onxger      IGl     HL 

to  irrevocably  direct  the  disposition  270 ;  Gloucester  s  ^^  ill,  32  N.  Y.  b. 

of  his  property  after  iiis  death  with-  R.  901 ;  11  N.  Y.  Supp.  899. 

out   putting   his    intentions    in    the  *See  Sees.  78  and  /9. 

shape    required    by    the    Statute    of  ^^  Sloniger    V.    Sloniger,    161    111. 

Wills,  it  can  not  be  questioned  that  270. 

instances     of     glaringly    fraudulent  « ^obb  v.  Hanford,  88  Hun    2L 

conduct    in    obtaining    services    or  "It    is    not    contended    but    that 

property  bv  the  inducement  of  such  Mrs.   Cobb   could  have  herself  been 

unfulfilled^  promises   have   led   to   a  enjoined  from  -^-^mg /^^^^^^"^ 

series  of   decisions  in  England  and  will."      Cobb   v.    Hanford,    88    Hun, 

in  this  country  in  which  courts  have  21.                                       oiMi.l.    filS 

taken    hold    of    and    remedied    such  ^  Keagle  v.  Pessell    9     M    h^  6  8 

instances    of    fraud   by    seizing    the  (to    hasten  .P^^^f^^^^'f;'/,; 

property    of    the   promisor    and    de-  Smith  v.  Smith,  135  Pa.  St.  48    (to 

voting   it   to   the   relief   of   the   de-  hasten  payment  to  estate), 
frauded  party."   Duvale  v.  Duvale, 
54  N.  J.   Eq.   581. 


80  LAW     OF     WILLS. 

§71.     Necessity  of  all  the  elements  of  a  valid  contract. 

While  such  contracts  are  enforceable  as  valid  contracts,  thev 
do  not  stand  upon  an  csi)ecially  favored  footing.  In  order  to 
be  enforceable  they  ninst  have  all  the  essential  elements  of  any 
valid  contract.  That  the  ])roniisor  nnist  be  competent  in  point 
of  capacity  is  an  elementary  proposition  which  may  be  left 
with  a  general  reference  to  any  of  the  standard  works  on  con- 
tracts. Bnt  the  questions  of  consideration  and  certainty  are 
presented  in  these  contracts  in  peculiar  aspects,  and  need  special 
discussion  with  reference  thereto. 

§72.     Consideration. 

A  consideration  is,  of  course,  essential;  without  one,  con- 
tracts of  this  class  can  not  be  enforced.*^  The  most  common 
forms  of  consideration  in  these  contracts  are  services  rendered 
for  the  promisor,  in  consideration  of  which  he  promises,  by  way 
of  compensation,  to  devise  or  bequeath  certain  property  to  the 
person  rendering  the  services.  Such  promise  is  based  upon 
valuable  consideration,  and  is  enforceable.^ 

Of  the  services  to  be  rendered  a  very  common  form  is  that  of 
personal  services  in  supporting  and  caring  for  the  aged.^*^  An- 
other common  form  of  consideration  is  the  surrender  of  a 
child  to  be  adopted  and  brought  up  by  the  promisor  as  his 
own  child,  he  promising  to  leave  her  property  at  his  death. 
The  weight  of  authority  is  that  this  is  such  a  consideration  as 
will,  in  law,  support  the  promise  to  devise  the  property  to  the 
child." 

8  Moore  v.  Stephens,  97  Ind.  271;  v.  Babcock,  163  Mass.  326;  Healey 
Wallace  v.  Rappleye,  103  111.  229;  v.  Simpson,  113  Mo.  340;  Drake 
Woods  V.  Evans,  113  111.  186;  v.  Lanning,  49  X.  J.  Eq.  452 ;  Emory 
Pleasanton's  Estate,  6  Pa.  Dist.  Rep.  v.  Darling,  50  O.  S.  160. 

6;   19  Pa.  Co.  Ct.  Rep.  205.  n  Benge    v.    Hiatt,    82    Ky.    666; 

9  Emory  v.  Darling,  50  0.  S.  160;  56  Am.  Rep.  912:  Healey  v.  Slmp- 
Snyder  v.  Castor,  4  Yeates  (Pa.)  son,  113  Mo.  340;  Burns  v.  Smith, 
353:    Thompson   v.    Stevens,   71   Pa.  21  ]\Iont.  251;   53  Pac.  742. 

St.  161.  But  in  Woods  v.  Evans,   113  111. 

10  Brady  v.  Smith,  28  N.  Y,  S.  186,  it  was  held  that  the  surrender 
776;     8     Misc.    Rep.     465;     Emery       of  the  child  together  with  the  ser- 


LAW     OF    WILLS.  °^ 

Where  the  child  has  rendered  services  to  the  person  adopting 
it,  the  courts  are  ahnost  unanimous  in  holding  that  a  consider- 
ation for  the  promise  to  leave  property  exists,^  ^  although,  as 
the  cases  cited  in  the  notes  indicate,  there  is  some  divergence 
of  judicial  opinion. 

A  promise  by  one  to  make  a  certain  disposition  of  property 
by  will  on  consideration  that  another  person  would  likewise 
niake  a  specified  disposition  of  his  property  by  will,  has  been 
held  to  be  supported  by  a  valid  consideration.^  =^ 

A  promise  of  a  widow  who  inherited  her  husband's  property 
to  provide  in  her  will  for  the  payment  of  services  rendered  to 
her  deceased  husband  in  consideration  of  promisee's  forbearing 
to  litigate  the  claim,  was  held  to  be  supported  by  a  valid  con- 
sideration, namely,  the  forbearance  of  the  owner  of  the  claim 
to  sue  the  husband's  estate  thereon.^^  And  the  transfer  of 
the  legal  title  of  real  estate  to  the  promisor  is  a  sufficient  con- 
sideration to  support  a  promise  by  promisor  to  devise  such 
real  estate.^  ^  But  the  abandonment  of  efforts  to  get  testator 
to  add  a  codicil  to  his  will  is  no  consideration  for  a  contract  to 
make  a  specific  devise.^^  Since  a  contract  to  make  a  will  is  as 
enforceable  as  any,  it  follows  that  the  promise  in  consideration 
of  which  the  will  is  m.ade  is  itself  enforceable  against  the  prom- 
isor, where  the  will  is  made  in  consideration  of  such  promise. 
Accordingly,  a  contract  between  a  beneficiary  and  a  testator, 
by  which  the  beneficiary  agrees,  in  consideration  of  the  gift 

vices  rendered  by  the  child,  did  not  Walpole  v.  Orford,  3  Ves.  Jr.  402 ;  2 
constitute  a  consideration  for  the  Harg.  304;  Crofut  v.  Layton,  08 
promise  to  devise  property;  and  in  Conn.  91;  So  Atl.  783;  Ed- 
Wallace  V.  Rappleye,  103  111.  229,  son  v.  Parsons,  155  N.  Y.  555: 
the  surrender  of  an  illegitimate  50  N.  E.  265,  affirming  s.  c.  85  Hun. 
child  to  her  father  was  held  not  to  203 ;  32  N.  Y.  S.  1030. 
be  a  consideration.  i4  Purviance  v.  Purviance   (Ind.), 

12  Roberts    v.    Hall,    1    Ont.    Rep.  42  N.  E.  .364 ;  14  Ind.  App.  209. 
388-  Sharkey  v.  McDermott,  91  Mo.  i^  In  re  Hoffer's   Estate,   101   Pa. 

G47;    60  Am.  Rep.   270;   Van  Dyne  St.  331:  29  Atl.  33;  Riley  v.  Allen, 

v.  Vreeland.  11  N.  J.  Eq.  370;  Heath  54  N.  J.  Eq.  495;   35  Atl.  654;  Du- 

v.    Heath,    18    Misc.    Rep.     (N.    Y.)  vale  v.   Duvale,   54   N.   J.   Eq.   581; 

521;    Emerv   v.    Darling,    50    0.    S.  .39  Atl.  687 ;  40  Atl.  440; 

16  Lennig's    Estate,    182    Pa.    St. 


160. 


isDufour  V.  Pereira,  1  Dick,  419;       485;  38  L.  R.  A.  378. 


82  LAW    OF    WILLS. 

to  him  by  will,  to  j)ay  money  to  another,  or  to  do  some  other 
thing  for  the  benefit  of  that  other  is  enforceable  at  law,  on  action 
brought  by  the  person  to  whonL  the  property  was  to  be  given 
by  the  terms  of  the  contract.^ '^  A  common  form  of  such  con- 
tract is  a  promise  made  to  testator  on  consideration  of  his  re- 
fraining from  altering  a  will  already  made.^^ 

A.,  one  of  the  three  devisees  to  whom  testator  gave  the  res- 
iduum of  his  estate,  promised  testator,  in  consideration  of  his 
abstaining  from  making  a  contemplated  change  in  his  will, 
that  A.  would  attend  to  having  his  wishes  fulfilled  by  paying 
to  the  intended  Ixniofieiary  an  amount  e(iuivalent  to  the  in- 
tended gift.  On  A.'s  failure  to  keep  her  promise  after  the 
death  of  testator  it  was  held  that  A.  was  personally  liable  on 
the  promise,  but  for  only  one-third  of  the  amount  promised.^ '^ 
The  promisor  can  not  avoid  the  contract  on  the  ground  that  it 
works  a  revocation  of  the  will  by  parol,  or  that  it  creates  a 
parol  trust.^*^ 

The  conduct  of  the  promisor  in  breaking  the  contract  en- 
tered into  after  receiving  the  devise  or  legacy,  which  was  given 
in  consideration  therefor,  is  sometimes  spoken  of  as  fraud. 
While  clearly  dishonorable,  it  is,  however,  not  fraud,  since  there 
has  been  no  misstatement  of  any  material  fact.  It  is  nothing 
more  than  a  breach  of  contract.  It  is,  accordingly,  held  that 
a  will  thus  obtained,  if  valid  otherwise,  can  not  be  set  aside 
for  such  a  breach  of  contract.^^  If  the  other  elements  of  fraud 
and  undue  influence  are  present  the  will  may  be  thereby  ren- 
dered invalid. 

Thus,  a  will  made  by  a  married  woman  as  a  result  of  the 


1"  Lawrence  v.   Oglesby,    178    111.  lo  Yearance    v.    Powell,    55    N.   J. 

122;   75  111.  App.  GG9;   Yearance  v.  Kq.    577. 

Powell,  55  N.  J.  Eq.  577 ;  Hoffner's  20  Lawrence    v.    Oglesby,    178    111. 

Estate,    IGl    Pa.    St.    331;    Brooke's  122,  affirming  75  111.  App.  669. 

Estate,   109  Pa.   St.   188 ;   Hodnett's  21  Weathers  v.  McFarland,  97  Ga. 

Estate,  154  Pa.  St.  485;  Gaullaghor  266;     (a   promise   by  a   husband   to 

V.   Gaiillagher,   5   Watts   200;    Hoge  pay  to  testatrix's  child  $250,  if  tes- 

V.  Hoge,   1   Watts,   163.  tatrix  would  leave  the  husband  her 

18  Lawrence   v.    Oglesby,    178    111.  entire    property). 
122 ;   Yearance  v.   Powell,   55  N.   J. 
577. 


LAW    OF    WILLS. 


83 


repeated  entreaties  of  her  sons,  and  of  the  prom.  e  of  her  hus 
band  to  provide  iu  his  will  for  a  grandehdd  whom  testatrix 
omitted  L  that  ground,  was  treated  as  void  on  aceount  of 
undue  influenee  and  fraud,  the  husband  bemg  insolvent,  and 
his  promise  never  kept.-^ 

A  promise  to  make  a  will  based  on  an  illegal  consideration, 
sueh  as  unlawful  sexual  intercourse,  is,  of  course,  unenforce- 
able." 


§73.     Certainty. 

A  contract  to  make  a  will  must,  in  order  to  be  enforceable, 
"be  clearly  proved  and  be  certain  and  unambiguous  m  al  its 
tenns"^^  In  no  other  class  of  contracts  are  parties  so  likely 
to  fail  to  come  to  a  definite  agreement  as  in  this  class;  and  in 
no  class  of  cases  do  the  courts  look  upon  the  contract  to  be  en- 
forced with  greater  jealousy."  The  failure  to  arrive  at  a 
definite  agreement  may  arise  out  of  the  fact  that  the  promisor 
does  notfntend  to  commit  himself  to  any  definite  course  of 
action.  A  mere  expression  of  intention  to  make  a  certain  dis- 
position of  property  is  of  course  not  valid  as  a  contract;    still 

less  are  vague  offers.^"  .,       ,      „i,^  :*  tVne 

A  contract  to  bring  up  a  child,  educate  it  and  make  it  the 

"heir"  of  promisor  has  been  held  to  be  unenforceable  m  Ken- 
nephew  in  Germany:   "If  you  want 
to  come  you  have  to  do  your  rights 
of  the  kid,  and  I  am  going  to  do 
the   rights    of    the    father.      If    you 
treat  like  my  kid  you  shall  be  my 
heir,  but  not  before  I  am  dead.     If 
you  treat  me,  which  you  will  have 
to  do  well,  then  I  am  going  to  treat 
you   right,"   it  was   held   that   this 
did  not  amount  to  an  absolute  prom- 
ise  to    make    the   nephew   his   heir 
and  devisee  if  he  would  come  from 
Germany    and   live   w^ith   his  uncle. 
Wilmer  v.  Borer,  4  Kan.  App.  109. 


22  Gordon  v.  Burris,  153  (Mo.), 
223  (1899),  54  S.  W.  54G.  (But  in 
this  case  there  was  other  evidence 
of  undue  influence.  The  finding  was 
not  based  entirely  on  the  fraud  of 
the  husband.) 

23Drennan   v.   Douglass,   102   111. 

341. 

24Sloniger  v.  Sloniger,  161  111. 
270,  quoting  Rock  Island  &  Peoria 
Ry.  Co.  V.  Dimick,  144  111.  628. 

25  Sloniger  v.  Sloniger,  161  111. 
270;  Shaw  v.  Schoonover,  130  111. 
448;  Woods  v.  Evans,  113  111.  186. 

26  Where   an   uncle   wrote   to   his 


84  LAW    OF    WILLS. 

tucky.^^  x\jid  an  ante-nuptial  contract,  by  which  the  husband 
agrees  to  adopt  his  wife's  children  by  a  former  marriage  as  his 
"heirs"  has  been  held  not  to  be  a  ])romise  to  make  a  devise  of 
the  hnsband's  property  to  them,  bnt  to  leave  the  husband  with 
the  same  power  of  exelnding  them  from'  a  share  in  his  Illinois 
realty  that  he  would  have  had  of  excluding  his  o\\ti  children.-'^ 
A  similar  contract  has  been  held  valid  and  enforceable  in  ]\[is- 
souri.^^  Or  the  promisor  may  detinitely  intend  to  make  some 
testamentary  disposition  of  his  property  in  favor  of  promisee, 
but  he  does  not  decide  what  provision  he  will  make.  Thus, 
he  may  agree  to  leave  promisee  "as  much  as  any  relation  he 
had  on  earth,"^^  or  that  while  promisor  lived  promisee  should 
have  a  good  home,  and  at  his  death  she  should  be  provided  for 
so  that  she  should  never  want  as  long  as  she  lived ;  ^^  or  that  he 
will  provide  for  the  adopted  child  as  he  does  for  his  own  chil- 
dren, and  his  will  makes  his  ovm.  children  residuary  legatees. 
These  agreements  are  too  indefinite  to  be  enforced.^^ 

An  agreement  in  writing  to  leave  by  will  to  an  employee  as 
much  as  he  would  lose  by  declining  an  offer  of  a  partnership 
in  a  competing  firm,  in  consideration  of  his  declining  such 
offer  and  remaining  in  the  employ  of  promisor  was  held  to  be 
too  indefinite  for  enforcement  in  law  or  in  equity.^^  But  a 
promise  to  leave  promisee  so  much  property  "that  she  need 
not  to  work,"  ^"*  or  to  leave  her  "independently  rich,"  ^^  or  to 

27  Brewer  v.  Hieronymous  (Ky.)  3i  Wall's  Appeal,  111  Pa.  St.  460. 
(no  official  report),  41  S.  W.  310,  32  Walker  v.  Boughner,  18  Ont. 
following    Davis    v.    Jones,    94    Ky.       Rep.  448. 

320,    citing    Willoughby   v.    Motley,  33  Rusell   v.  Agar,   121    Cal.   396: 

83  Ky.  297 ;  Power  v.  Hafley,  8.5  Ky.  53    Pac.    926,    decided    under    Civ. 

671,    and    distinguishing    Benge    v.  Code,   Section   3390,   citing  Graham 

Hiatt,  82  Ky.  666 :  6  Ky.  Law  Rep.  v.  Graham,  34  Pa.  St.  47.5,  and  dis- 

714,  where  the  contract  was  to  bring  tinguishing  Bayliss  v.   Pricture,   24 

up    the    child     and     de\'ise     specific  Wis.  651. 

property  to  it.  34  Thompson    v.    Tucker    Osborne, 

28  Long  V.  Hess,  154  111.  482;  27  '  111  Mich.  470;  69  X.  W.  730: 
L.  R.   A.   791.  Thompson    v.    Stevens,    71    Pa.    St. 

29Xowack  V.  Berger,  133  Mo.  24;        101. 
So   Gary   v.   James,    4   Desaus.    ( S.  35  Cottrell's    Estate,    2    W.    X.    C. 

Car.)    185.  (Pa.)    8.3. 

30  Graham    v.    Graham,     34    Pa. 
St.  475. 


OK 

LAW     OF     WILLS.  "^^ 

make  her  "his  heir,"  ^^  or  to  leave  promisee  all  the  property 
that  promisor  omiecl  at  his  death  ;=^^  or  to  leave  promisee  "a 
child's  share"  in  the  estate  of  promisor,  where  promisor  was 
at  the  date  of  the  contract  and  always  remained  childless  f^  or 
to  make  "adequate  compensation,"  ^^'^  have  been  held  U)  be 
definite  enough  to  maintain  an  action  upon. 

A  contract  to  bequeath  so  much  of  an  annuity  as  should  re- 
main unexpended  at  the  death  of  the  annuitant  is  enforceable, 
although  the  amount  is  uncertain.^*^ 

§74.     The  Statute  of  Frauds. 

When  the  contract  to  compensate  by  will  is  oral,  the  question 
arises  as  to  the  admissibility  of  parol  evidence  to  establish 
the  existence  and  terms  of  such  contract. 

Contracts  to  make  wills  are  contracts  which  may  be  per- 
formed witliin  one  year  from  the  date  thereof.  Accordingly, 
such  contracts  are  not  upon  this  ground  within  the  Statute  of 
Frauds,  but  may  be  proved  by  parol  evidence.^i  But  when 
the  contract  is  to  devise  specific  real  property,  the  section  of 
the  Statute  of  Frauds  which  requires  agreements  for  the  sale 
of  land  to  be  in  writing  applies,  and  the  contract  can  not  be 
proved  by  parol.^^     xhe  same  rule  applies  when  the  contract 

36  Gary  v.  James,  4  Desaus  (S.  Bell  v.  Hewitt,  24  Ind.  280;  Wel- 
^,^^.  )    jgg_  lington  V.   Apthorp,   145  Mass.   69; 

37  Healey  v.  Simpson,  113  Mo.  Updike  v.  Ten  Broeck,  32  N.  J.  L. 
340-  Brady  v.  Smith,  28  N.  Y.  S.  105;  Quackenbush  v.  Ehle,  5  Barb. 
776-  8  Misc.  Rep.  465;  Van  Duyne  (N.  Y.),  469;  Kent  v.  Kent,  62  N. 
V  Vreeland  12  N.  J.  Eq.  142 ;  Drake  Y.  560;  20  Am.  Rep.  502;  Jilson 
V.  Lanning.  49  N.  J.  Eq.  452;  v.  Gilbert,  26  Wis.  637 ;  7  Am.  Rep. 
Kleeburg  v.  Sohrader,  69  Minn.  136;  100. 

72  N.  W.  59.  Contra,    Izard    v.    MJddleton,     1 

38  Barnes  v.  Smith,  21  Mont.  251 ;       Desaus  (S.  Car.),  116. 

53  Pac.  742;  or  where  promisor  had  42  Walpole  v.  Orford,  3  Ves.  402; 

children;  Norris  v.  Clark,  3  Weekly  Harder  v.  Harder,  2  Sandf.  Ch.  17; 

Law  Bull    994.  Manning   v.    Pippen,    86    Ala.    357 ; 

"  39  Rivers  V.  Rivers,  3  Desaus    ( S.  11  Am.  St.  Rep.  46 ;  Baxter  v.  Kitch, 

Q^j.  )     190  37   Ind.  554;   Wallace  v.  Long,   105 

40Garardv.Yeager   (Ind.),  1900;  Ind.    522;     55    Ind.    222;     Orth    v. 

56  N    E    237.  Ortli'   145  Ind.   184;   Ham  v.  Good- 

41  Ridley  V   Ridley.  34  Beav.  478;  rich,  37  N.  H.  185;  Smith  v.  Smith, 

Fenton   v."   Emblors;   3   Burr.    1278;  28   X.  J.  L.  208;    78   Am.  Dec.  49; 


86  LAW     OF     WILLS. 

is  one  to  leave  all  the  property,  both  real  and  personal,  to  prom- 


43 


isee. 

In  jurisdictions  where  the  Statute  of  Frauds  requires  con- 
tract for  the  sale  of  personal  property  exceeding  a  certain 
amount  to  be  in  writing,  a  contract  to  bequeath  personal  prop- 
erty exceeding  the  value  fixed  by  statute  must  be  evidenced  by 
writing.^^  It  is  held,  however,  that  when  in  pursuance  of  a 
contract  to  make  a  will,  promisor  does  make  such  will,  this  is 
a  writing  sufficient  to  satisfy  the  requirements  of  the  statute.^^ 

§75.     Part  performance. 

It  is  well  recognized  as  an  elementary  principle  of  law  that 
part  performance  of  an  oral  contract  for  the  sale  of  real  estate 
may  be  sufficient  to  take  the  case  out  of  the  Statute  of  Frauds.^" 

As  invoked  in  contracts  to  devise,  the  part  performance  gen- 
erally relied  upon  is  the  surrender  of  the  custody  of  the  child 
and  the  benefit  of  her  society  and  services.  The  courts  sharply 
disagree  as  to  whether  these  acts  amount  to  such  part  per- 
formance as  will  take  the  case  out  of  the  statute. 

Some  jurisdictions  relax  the  rule  and  hold  that  this  is  suf- 
ficient part  performance.^'^  Other  jurisdictions  apply  the  rule 
more  strictly  and  hold  that  such  acts  do  not  amount  to  part 
performance,  on  the  theory  that  in  order  to  amount  to  part 


Lisk  V.  Sherman,  25  Barb.   (N.  Y.),  Contra,  Hale  v.  Hale,  90  Va.  728. 

433;  Harder  v.  Harder,  2  Sandf.  cl.  46  Alexander    v.    Alexander,     150 

(N.  Y.),   17;    Swash  v.   Sharpstein,  Mo.  579. 

14  Wash.  426.  4"  Roberts    v.    Hall,    1    Ont.    Rep. 

So  of  a  contract  not  to  make  a  388;  Gupton  v.  Gupton,  47  Mo.  37 

will  but  to  allow  realty  to  descend.  Sutton    v.    Hayden,    62    Mo.    101 

Dicken  v.  McKinley,  163  111.  318.  Sharkey  v.  McDermott,  91  Mo.  647 

43  Shahan  v.  Swan,  48  Q.  S.  25 ;  00  Am.  Rep.  270 ;  Davidson  v. 
Hopple  V.  Hopple,  3  Ohio  C.'  C.  Davidson,  13  N.  J.  Eq.  246;  Van 
102.  Dyne    v.    Vreeland,    11    N.    J.    Eq. 

44  Wallace  v.  Long,  105  Ind.  522:  370:  Heath  v.  Heath,  18  Misc.  Rep. 
55  Am.  Rep.  222;  Orth  v.  Orth,  145  (X.  Y.),  521:  Rhodes  v.  Rhodes,  3 
Ind.   184;    145   Ind.   206.  Sandf.  Ch.   (N.  Y.).  279:  Brinton  v. 

45Whiton  v.  Whiton,  179  111.  32;  Van  Cott,  8  Utah,  480;  33  Par.  218. 
Bruce   v.    Moon    (S.    Car.)     (1900), 
35  S.  E.  415. 


LAW    OF    WILLS. 


perfom^ance  the  acts  H,.st  be  cleariy  ref erab  e  U>  some  on  raet 
™ith  reference  to  the  real  property  m  question,  and  that  the 
IdoptLn  of  a  child  by  due  forms  of  law,  or  the  act  of  taking 
it  iL  the  family,  would  not  necessarily  refer  to  any  contract 
on  the  subject  of  real  estate.^^  _  n  i     •  .  +^ 

Where  the  contract  alleged  was  that  promisor  would  gne  to 
a  specified  child  a  share  in  his  estate  equal  to  that  ^^f^^^^^^ 
would  inherit,  on  consideration  that  the  mother  of  the  child 
would  marrv  liim  and  would  surrender  the  custody  and  con  rol 
of  the  child  to  him,  the  marriage,  followed  by  -^  ---f -' 
was  held  to  be  sufficient  part  performance  to  take  the  ca.e  out 

of  the  Statute  of  Frauds.^<^  ^  rfofim^ 

A  surrender  of  possession  of  the  real  property  in  the  lifetime 
of  the  promisor,  followed  by  the  erection  of  valuable  improve- 
ments Lreon  by  the  promisee,  is  sufficient  ^s  part  periorm^ 
ance  to  take  the  case  out  of  the  operation  of  the  Statute  of 
Frauds  «^     Surrender  of  possession  of  real  property  alone  has 
been  held  to  amount  to  part  performance.^^     And  an  oral  con- 
tract between  a  number  of  owners  of  realty  in  common  that 
each  will  either  devise  his  share  to  the  survivors  or  let  it  pass 
by  descent,  and  that  the  survivor  shall  either  devise  it  or  le. 
it  pass  bv  descent  to  a  certain  named  person,  the  only  child  of 
the  onlv^one  of  said  o^^mers  in  common,  who  was  married,  is 
taken  out  of  the  Statute  of  Frauds  by  part  performance,  where, 
by  compliance  on  the  part  of  all  the  other  owners  in  common, 

.3  Campbell  v.McKerncher,  6  Ont.  Hayden    62  Mo    l^l;/-  ^'Y^^- 

Rep    85-    Pond  v.   Sheean,   132   111.  Vreeland,   11  N.  J.  Eq.  3  0     12  W. 
Kep.  »i),    xoiiu                     ,  Ewing  v.  Richards,  7 

312;    Dicken   v.  McKinley,   163  111.  J.   i^q-    i*-^ '  » 

318 ;  Wallace  v.  Long,  105  Ind.  522 ;  Weekly  Law  Bull.  183. 
55  im.  Rep.  222;  Shahan  v.  Swan,  50  Nowack  v.  Berber,  133  Ho.  21. 

IrT'o-  5iAllbriglit   V.    Hannah,    103    lo. 


48  O.  S.  25. 


But'  a"  formal    adoption    in    the  98  ;  72  N.  W.  421. 
Probate  CouH  where  a'petition  was  ^  ^^^f^^' ^  ^'fZ^',^^^^^^^^^ 

..gned  by  the  parents  of  the  child  ^^  ^^  ^J^— f^"  ^  Z^^l 

as  well  as  by  the  adopting  parents  238,  /^^\;;/^^7''    '^  414.  jy;,^. 

randum  m  S^^artz  v.  bteel.  ^   ^^^^^^  ^^  ^^^    ^^^^  ^g.  g^.^,^  ^ 

^-   ^-    ^'^*-  .        •  ,ffl  Pierce    65  Vt.  200;  25  Atl.  1092. 

Contra,  that  adoption   is  a  suffi-  Pierce,  bo   vi. 

cient  part  performance.      Sutton  v. 


88  LAW     OF     WILLS. 

the  realty  has  vested  in  severalty  in  the  last  survivor,  and  the 
child  named  in  the  contract  can  enforce  it.^^ 

A  transfer  of  property  to  testator  below  its  real  value  and 
the  performance  of  personal  services  for  testator  in  his  own 
home  by  his  children  who  went  to  live  with  him  in  order  to 
render  such  services  amount  to  such  part  performance  as  take 
the  case  out  of  the  Statute  of  Frauds.^ ^      . 

§76.     What  is  a  breach  of  such  contract. 

When  the  promisor  dies,  not  leaving  a  will  valid  in  all 
respects,  and  conforming  to  the  agreement,  the  contract  is 
broken,  and  in  a  proper  case  equity  will  give  relief;  or  if  tlic 
facts  which  demand  and  justify  equitable  relief  are  absent,  the 
party  has  a  right  of  action  at  law.  The  breach  of  contract  in 
such  case  exists  independent  of  the  motive  of  the  promisor  for 
such  breach.  He  may  have  intended  to  comply  with  the  con- 
tract and  have  omitted  to  make  tlie  will  through  negligence;"*^ 
or  he  may  have  believed  in  good  faith  that  the  will  which  he 
has  made  in  violation  of  the  contract  is  better  for  the  interests 
of  all  concerned  tlian  the  will  which  he  had  agreed  to  make,^" 
or  he  may  have  attempted  in  good  faith  to  execute  his  will  and 
failed  to  comply  with  the  rules  of  law  as  to  execution ;  ^"^  or 
his  death  may  follow  his  will  so  closely  that  the  devise,  e.  g., 
to  a  charity,  may  fail ;  ^^  or  he  may  believe  that  he  has  per- 
formed his  contract  in  another  manner.^°  In  all  such  cases 
the  contract  is  broken  by  his  death  without  the  \vi\\  contracted 
for.     His  motive  may  be  important  to  show  that  he  regarded 

53Murphey    v.    Whitney,    140    N.  57  Burns  v.  Smith,  21  Mont.  251 ; 

Y.  541.  53   Pac.   742;    Green   v.   Orgain,   — 

54  Svanburg  v.  Fosseen,  75  Minn.       Tenn.  46  S.  W.  477. 

350;    43   L.   R.   A.   427;    78   N.   W.  ^»  Tn  re  Hoffner's  Estate,  161  Pa. 

4.  St.  331;   29  Atl.  33. 

55  Weingaertner  v.  Pabst,  115  111.  59  Burns  v.  Smith,  21  Mont.  251, 
412.  53  Pac.  742.  In  this  case  the  promis- 

56  Riley  v.  Allen,  54  N.  J.  Eq.  or  made  no  will,  because  he  believed 
495.  In  this  case  the  devise  was  that  an  attempted  adoption  of 
made  not  to  promisee,  but  to  her  promisee  complied  with  the  law, 
children,  in  order  to  keep  promisee's  and  that  it  was  therefore  unneces- 
husband  from  wasting  it.  sary  to  make  a  will. 


LAW    OF     WILLS.  8" 

the  contract  as  still  in  force,  but  it  can  not  prevent  the  ex- 
istence of  the  breach  of  contract. 


§77.     Construction  and  performance. 

As  said  already,  these  contracts  must  be  sufficiently  definite 
and  certain  to  enable  the  courts  to  ascertain  their  tenns  clearly, 
and  to  decide  what  would  amount  to  a  breach.     The  rules  of 
construction  of  such  contracts  are  substantially  the  same  as  for 
any  other  contracts.     Thus,  where  the  promisor  agreed  to  lease 
to  promisee  all  her  estate  remaining  at  her  death  it  was  held 
to  include  property  subsequently  acquired  by  promisor  by  in- 
heritance, although  such  inheritance  was  not  contemplated  by 
either  ])arty  to  the  contract  at  the  time  of  entering  into  it.*^*^ 
And  where  promisor  agreed  to  refund  certain  money  to  his 
daughter  if  she  did  not  ''heir"  a  particular  portion  of  his  land 
at  his  death,  it  was  held  that  the  meaning  of  this  contract  was 
that  she  should  receive  his  entire  estate  in  such  land;    and 
accordingly  when  her  father  devised  a  life  estate  in  such  land 
to  her  ^^•ith  remainder  over  to  the  testator's  other  children  if 
she  died  without  issue  he  did  not  perform  his  agreement.^' 
And  where  C  and  his  only  son  and  K  and  his  only  son  were 
about  to  form  a  corporation,  and  as  part  of  the  contract  they 
mutually  agreed  not  to  sell  their  stock,  but  that  C  and  his  son 
should  by  natural  wills  boqueatli  their  respective  holdings  to 
each  other,  and  K  and  his  son  should  do  likewise,  and  C  left 
his  stock  to  his  son  on  condition   that  he  would   pay  to  C's 
widow  $500  per  annum,  it  was  held  that  such  contract  was 
valid,  and  that  C  had  not  performed  it.^^     In  order  to  entitle 
promisee  to  recover  upon  the  contract  it  is  necessary  that  he 
perform  all  the  conditions  precedent  on  his  part  to  be  per- 
formed.^^     Thus  where  a  promise  was  made  by  a  father  to 
devise  land  to  his  son  in  consideration  of  the  son's  living  on 
the  land  and  supporting  and  taking  care  of  his  father  the  son's 

60  Kleeburg  v.  Sehrader,  69  Minn.  62  Crofut  v.  Layton,  68  Conn.  91 ; 

136;  72  N.  W.  59.  35  Atl.   783. 

6iParrott  v.  Graves    (Ky),  32  S.  "3  Weingsertner  v.   Pabst,   115  111. 

W.  605.  412. 


90  I.AW     OF     WILLS. 

heirs  have  no  right  to  specific  performance  of  the  contract  if 
he  left  the  land  during  his  father's  life  in  violation  of  his 
agreement  and  entered  the  army,  where  he  lost  his  life.*^^  But 
this  rule  must  not  be  taken  to  exclude  the  right  and  power  of 
the  promisor  to  waive  any  of  such  conditions  which  are  bene- 
ficial to  him,  provided  enough  are  left  in  force  to  amount  to  a 
consideration.  Where  promisor  agreed  to  leave  a  girl  whom 
he  meant  to  adopt  such  part  of  his  estate  as  she  would  inherit 
if  she  were  his  own  child  in  consideration  of  her  living  with 
him  as  a  dutiful  child,  the  fact  that  she  was  at  times  disobe- 
dient and  once  ran  away  was  not  such  failure  of  performance 
on  her  part  as  to  defeat  her  rights  under  the  contract  when  it 
appeared  that  promisor  had  forgiven  her,  gone  after  her  to 
induce  her  to  come  home  with  him,  and  had  treated  her  as  .his 
own  child  for  years  afterwards.*^^ 

§78.     Remedies  for  breach  of  contract  at  law. 

Where  the  promisor  has  bound  himself  by  a  valid  contract 
to  devise  certain  property  and  has  failed  to  perform  his  con- 
tract the  promisee  may  maintain  an  action  at  law  against  the 
personal  representatives  of  the  decedent  promisor. ^•^ 

The  promisee  has  a  choice  between  two  theories  of  his  case. 
He  may  sue  on  the  contract.  In  such  case  the  measure  of 
damages  will  be  the  value  of  the  property  which  l)y  the  terms 
of  the  contract  was  to  have  been  devised  or  bequeathed  to 
him.^'^  Or  he  may  apparently  treat  the  contract  as  rescinded 
and  sue  on  quantum  meruit  for  the  reasonable  value  of  his 
services.®^  When  the  contract  is  made  by  parol  and  falls 
within  the  terms  of  the  Statute  of  Frauds  the  promisee  can 

64  Cox  V.  Cox,  26  Gratt  (Va.),  67  Benge  v.  Hiatt,  82  Ky.  666; 
305.  50  Am.  Rep.  912;   Porter  v.  Dunn 

65  Burns  v.  Smith,  21  Mont.  251:  131  N.  Y.  314;  Graham  v.  Graham, 
53    Pae.    742.  34  Pa.  St.  475. 

66Purviance   v.    Shultz,     16     InJ.  ss  Hudson  v.  Hudson,  87  Ga.  678 ; 

App.    94;    44    N.    E.    766;    Lisle   v.  Purvianee   v.    Shultz,    16    Tnd.    App. 

Tribble,  92  Ky.  304;   Clark  v.  Cor-  94;   44  N.  E.   766;   Laird  v.   Laird, 

dry,  69  Mo.  App.  6;  Logan  v.  Mc-  115  Mich.  352;  73  N.  W.  382;  Green 

Ginnis,    12   Pa.    St.   27.  v.    Orgain    (Tenn.),   46   S.    W.   477. 


91 

LAW    OF    WILLS. 


not,  of  course,  maintain  an  action  upon  the  contract  m  the  ab- 
sence of  part  perfonnance,  but  he  can  recover  tor  the  services 
rendered,  rights  surrendered  or  other  original  consideration 
for  such  contract  -  The  view  of  more  modern  authorities  is 
that  in  such  cases  the  measure  of  damages  is  the  value  of  the 
orioinal  consideration  for  the  contract  to  bequeath  or  devise. 

?here  is,  however,  a  conflict  of  authority  on  this  point,  and 
one  line  of  cases  takes  the  view  that  the  terms  of  compensation 
fixed  bv  the  contract  may  be  introduced  in  evidence  to  the 
iury  tJ  show  what  the  parties  understood  a  reasonable  com- 
pensation to  be  -  Where  this  rule  is  adopted  the  Statute  of 
Frauds  is  practically  annulled. 

Where  the  promisor  has  left  property  by  will  which  m 
part  satisfies  the  terms  of  the  contract  the  promisee  may  ac- 
cept such  partial  performance  of  the  contract  and  maintain 
his  action  against  the  estate  for  the  balance. '- 

^79.     Remedy  for  breach  of  contract  in  equity. 

^Yhere  the  promisor,  who  has  entered  into  a  valid  contract 
to  devise  or  bequeath  property,  dies  without  having  performed 
such  contract  equity  will  give  relief.  This  is  usually  spoken 
of  as  Specific  Performance  or  Relief  in  the  Mature  of  Spe- 
cific Performance.  Of  course  specific  performance  is  impos- 
sible in  such  a  case.  The  real  nature  of  the  proceeding  is  to 
have  the  heirs,  devisees  or  personal  representatives  of  the  de- 
ceased declared  to  be  trustees  in  respect  to  the  property  cov- 
ered by  the  contract,  to  which  they  take  the  legal  title  for  the 

eoHudson  V.Hudson.  87  Ga.  678;  Y.    299;     Hertzog    v.    Hertzog.    34 

Jack  V.  MoKee.  9  Pa.   St.  235.  Pa.  St.  418. 

TO  Wallace  v.  Long,  105  Ind.  522;  ti  Hopkins  v    Lee,  6  \J  heat    (L 

55    ^m    Rep.   222.  overruling  Frost  S.),    109;    Hudson    ^    Hudson,    8 

;    T^     53'lnd.   390;   Purviance  v.  Ga.  678;  Jack  v.  McKee    9  Pa    St 

Shultz.  16  Ind.  App.  94;  Succession  235;  McDowell  v.  Oyer,  21  Pa.  St. 

of  McNamara.  48  La.  Ann    45  =    18  41-  ^^^  ^,   ^.    ^^^ 

So.   908:    Ham   v.   Goodrich.    3/    N.  T-i/oiier  \.xj 

H.   185;    Erbcn  v.  Lorillard.   19  N. 


92 


LAW    OF    WILLS. 


benefit  of  the  promisee  as  to  cestui  que  trustJ^  Or,  where 
specific  performance  is  impracticable,  the  promisee  may  have 
reconveyance  of  any  property  with  which  he  has  parted  to 
promisor  on  the  faith  of  the  contractJ^  Where  the  testator 
has  conveyed  the  land  in  his  lifetime  by  voluntary  conveyance 
to  one  having  knowledge  of  his  contract  to  devise  it  such  deed 
may  be  set  aside  upon  application  of  the  promiseeJ^ 

Where  the  promisor  recognizes  the  contract  as  binding,  and 
merely  omits  to  make  a  will  equity  will  not  assume,  in  a  suit 
brought  during  the  life  of  the  promisor,  that  he  will  violate 
his  contract.  The  contract  has  not  in  fact  been  violated,  for 
the  testator  has  the  whole  of  his  life  in  which  to  perform  it. 
Therefore,  under  such  circumstances  equity  will  not  compel 
promisor  to  make  a  specific  will.'*^     But  where  the  testator 


73  Gregor  v.  Kemp,  3  Swanst. 
404;  Jones  v.  ^Martin,  5  Ves.  Jr. 
266;  Randall  v.  Willis.  5  Ves.  Jr. 
262;  Fortescue  v.  Hennah,  19  Ves. 
Jr.  67 ;  Logan  v.  Wienholt,  7 
Bligh.  N.  R.  1;  Brown  v.  Sutton, 
129  U.  S.  238 ;  Townsend  v.  Vander- 
werker,  160  U.  S.  171;  .Taffee  v. 
Jacobson,  48  Fed.  21 ;  Bolman  v. 
Overall,  80  Ala.  451;  60  Am.  Rep. 
107;  Owens  v.  McXally,  113  Cal. 
444;  Maddox  v.  Rowe,  23  Ga.  431: 
68  Amer.  Dec.  535;  Allbright  v. 
Hannah,  103  lo.  98 ;  72  N.  W.  421 : 
Whiton  \.  Whiton,  179  111.  32;  70 
111.  App.  553:  Lisle  v.  Tribble,  92 
Ky.  304 ;  Carmichael  A^  Carmichael, 
72  Mich.  76:  Bird  v.  Pope,  73  Mich. 
483:  Haines  v.  Haines,  6  Md.  435; 
Miindorff  v.  Kilbourn,  4  Md.  459 ; 
Hiatt  V.  Williams,  72  Mo.  214; 
37  Am.  Rep.  438  ;  Wright  v.  Tinsley, 
30  Mo.  389;  Healey  v.  Simpson,  113 
Mo.  340 ;  Sutton  v.  Hayden,  62  Mo. 
101;  Sharkey  v.  McDermott,  91 
Mo.  647  ;  Leyson  v.  Davis,  17  Mont. 
220;  42  Pac.  775:  Burns  v.  Smith, 
21  Mont.  251 :  53  Pac.  742 :  Van 
D^Tie  V.  Vreeland,  12  X.  J.  Eq. 
142:    11  X.  J.  Eq.   370:   Davison  v. 


Davison,  13  X.  J.  Eq.  24G;  Johnson 
v.  Hubbell,  10  X.  J.  Eq.  332:  Wi 
Am.  Dec.  773:  Pflugar  v.  Pultz, 
43  X.  J.  Eq.  440;  ll-Atl.  123: 
Duvale  v.  Duval e,  54  N.  J.  Eq.  581  : 
40  Atl.  440:  Riley  v.  Allen,  54  X. 
J.  Eq.  495;  Parsell  v.  Stryker.  41 
X\  y.  480;  Emory  v.  Darling.  50 
O.  S.  160;  Xorris  v.  Clark,  3  W. 
L.  B.  994;  In  re  HoflFner's  Estate, 
161  Pa.  St.  331;  29  Atl.  33;  Brinker 
V.  Brinker,  7  Pa.  53 :  Gary  v.  James, 
4  De  Saus,  185  ;  McKeegan  v.  O'Xeil, 
22  S.  Car.  454;  Fogle  v.  P.  E. 
Church  of  St.  Michael,  48  S.  Car. 
86;  26  S.  K  99:  Brinton  v.  Van 
Cott,  8  Utah,  480;  33  Pac.  218: 
Smith  V.  Pierce,  65  Vt.  200. 

74  Riley  V.  Allen,  54  X'.  J.  Eq. 
495;  35  Atl.  654. 

75  Kastell  V.  Hilman,  53  X.  J.  Eq. 
49. 

76  Maud  V.  Maud.  33  O.  S.  147. 
See  the  remarks  of  the  court  in  Bol- 
man V.  Overall,  80  Ala.  451;  60 
Am.  Rep.  107,  which,  though  merely 
dicta,  appear  to  be  assumed  gen- 
erally as  a  correct  statement  of 
the  law. 


LAW     OF     WILLS. 


98 


iu  his  lifetime  repudiates  the  contract  and  declares  or  mani- 
fests his  intention  not  to  be  bound  by  it,  equity  may,  on  bill 
in  the  nature  of  quia  timet,  declare  the  property  to  be  held 
in  trust  for  promisee,  his  enjoyment  to  begin  according  to  the 
terms  of  the  con  tract  J  ^ 

The  general  principles  of  equity  which  control  specific  per- 
formance apply  in  a  contract  to  make  a  will.  We  have  seen 
that  no  relief  will  be  given  for  breach  of  a  gratuitous  promise 
to  devise,  either  in  law  or  in  equity.  But  equity  may,  for 
certain  reasons,  refuse  specific  performance  of  a  contract  upon 
which  an  action  at  law  would  lie,  leaving  the  parties  to  their 
rights  at  law.  The  contract,  in  order  to  obtain  specific  per- 
formance (so  called),  must  be  clear  and  certain."^^  Thus  a 
promise  to  devise  to  promisee  the  use  of  ju-omisor's  home  for 
life,  the  title  to  go  to  some  undetermined  member  of  promisor's 
family,  was  held  too  indefinite.'^ ^  So  was  a  promise  to  devise 
one  hundred  acres  of  land  without  specifying  what  land  or 
how  valuable  f^  or  a  promise  to  give  promisee  as  much  as  ho 
could  make  by  entering  into  a  partnership  with  a  competitor 
of  promisor,^^  In  all  these  cases  equity  refuses  relief,  and 
leaves  the  promisee  to  his  action  at  law  upon  a  quantum  meruit. 

The  contract  must  be  a  fair  and  reasonable  one  to  induce 
equity  to  grant  relief.  A  contract  by  which  one  binds  him- 
self to  devise  all  his  property  to  his  illegitimate  children  to 
the  exclusion  of  his  legitimate  children,^^  or  one  by  which  an 
uncle  binds  himself  to  devise  all  his  property  to  his  niece  to 
the  exclusion  of  his  wife,  even  Avhere  he  is  umnarried  at 
the  time  of  making  the  contract,^^  is  one  so  unfair  and  lui- 


"  Diivale    V.    Duvale,    54    K    J.  79  Stanton    v.    Miller,    58    N".    Y. 

Eq.    581  :    40    Atl.    440,    citing    and  192. 

following    Van    Dyne    v.    Vreeland,  so  Sherman    v.    Kitsmiller,    17    S. 

11   N.  J.  Eq.   370;   Parsell  v.   Stry-  &  R.  (Pa.),  45. 

ker,  41  N.  y.  480.  si  Russell  v.  Agar,  121  Cal.  396; 

TsMundorff    v.    Kilbourn,    4    Md.  53  Pac.  926. 

459 ;    Shakespeare   v.    Markham,   72  82  Wallace   v.    Rappleye,    103    111. 

N".  Y.   400,   affirming   10  Hun,   311;  229. 

Lisk  V.  Sherman,  25  Bab.    (N,  Y.),  83  Owens    v.    McXally,     113    Cal. 

433  ;  Sprinkle  •*.  Hayworth,  26  Gratt  444;    45   Pac.   710. 
(Va.),  384. 


94  LAW     OF     WILLS. 

conscionable  that  equity  will  not  grant  relief,  but  will  leave 
the  parties  to  such  rights  as  they  may  have  at  law. 

Where  the  consideration  for  the  promise  to  devise  is  one  in- 
capable of  estimation  in  money,  as  where  one  person  has  de- 
voted a  great  amount  of  time  in  giving  his  society  to,  and  ren- 
dering personal  services  to  another,  according  to  the  weight 
of  authority,  equity  will  grant  relief  for  the  breach  of  such 
contract.^^ 

Where  the  contract  has  become  impossible  of  literal  per- 
formance, equity  will  not  attempt  to  compel  parties  to  per- 
fonn  an  impossibility,  but  will  grant  such  relief  as  the  facts 
make  just  and  expedient.  Thus,  a  testator  had  promised  his 
daughter  that  if  she  would  deed  certain  real  property  to  him,  he 
would  leave  to  her  and  her  husband  the  income  of  $25,000 
apiece  during  their  natural  lives.  The  daughter  made  the 
conveyance,  but  the  testator  by  will  disposed  of  his  property 
for  the  benefit  of  the  minor  children  of  his  daughter.  The 
testator's  estate  did  not  amount  to  $50,000,  and  the  specific 
performance  of  his  agi'eement  was  impossible.  Held,  that  in 
such  case  the  dauo;hter  was  entitled  to  a  rescission  of  the  con- 


84  Sutton  V.  Hayden,  62  Mo.  101 ;  the  authorities  are  uniform  in  say- 
Emory  V.  Darling,  50  O.  S.  100.  ing    that    specific    performance    is 

In    Sutton   V.    Hayden    the    court  the  proper  remedy.     The  considera- 

said    in    speaking   of   the    value    of  tion    that    moved    Miss    Powell    to 

services:  make    the    promise    was    a    desire 

"The  law  furnishes  no  standard  for  the  society  of  her  sister.  The 
by  which  the  value  of  such  ser-  value  of  the  society  of  one  sister 
vices  can  be  estimated,  and  Equity  to  another  is  incapable  of  measure- 
can  only  make  an  approximation  ment  in  money.  Rhodes  v.  Rhodes, 
in  that  direction  by  decreeing  the  3  Sandf.  Ch.  279.  Hence  the  only 
specific   execution  of  the  contract."  appropriate  remedy  is  the  one  that 

And  in  Emory  v.  Darling,  supra,  has  been  awarded." 
the  court  said:  Emory  v.  Darling  is  thus  in  one 

"It  is   suggested  that  the  proper  point  opposed  to  Owens  v.  McNally, 

remedy  would  have  been  an  action  113  Cal.  444,  in  which  case  it  was 

for   the  value  of   the   services.     No  held  that  the  only  relief  to  be  given 

reason   can   be   given   for   this   that  was    the    estimation    of    the    money 

would    not    apply    to    any    contract  value    of    the    society    and    services 

for  a  conveyance  of  land.     Besides,  of  the  promisee. 


LAW     OF     WILLS.  "^ 

tract  and  a  reconveyance  of  the  real  property  deeded  by  her 
to  her  father.^^ 

Where  the  contract  was  one  to  make  a  certain  devise,  or  if 
promisor  should  fail  to  make  this  devise,  to  refund  certain 
rents,  equity  will  not  decree  specific  performance,  as  the  prom- 
isor had  his  choice  between  the  two  alternatives,  and  if  the 
promisee  sues  for  the  rents,  he  has  a  complete  remedy  at  law.^*^ 

The  remedy  of  specific  perfonnance  must  be  sought  in  a. 
court  of  equity.  It  can  not  be  administered  by  the  probate 
court  in  a  direct  proceeding  for  that  purpose.^^ 

§80,     Election  of  remedies. 

The  promisee  may  waive  his  rights  under  the  contract  to  de- 
vise property,  as  we  have  already  said  in  discussing  his  rem- 
edies at  law.  It  follows  that  having  once  elected  to  treat  the 
contract  as  no  longer  in  force,  he  can  not  afterward  seek  to 
enforce  it;  still  less  can  he  pursue  both  remedies  at  once. 
Filing  a  claim  for  the  value  of  the  services  which  were  the 
consideration  for  the  contract  to  devise  is  such  an  election  that 
the  contract  can  no  longer  be  enforced.^^ 

§81.     Evidence. 

The  evidence  by  which  the  existence  of  a  contract  to  de- 
vise is  to  be  proved  is  governed  by  the  same  rules  as  in  othei' 
contracts.  The  only  especial  peculiarity  is  that  neither  party 
as  a  rule  is  able  to  testify  in  such  actions,  the  promisor  being 
dead  and  the  promisee  being  prohibited  from  testifying  as  to 
transactions  with  the  promisor  in  his  lifetime.  The  testimony 
of  those  not  parties  to  the  contract  must,  therefore,  as  a  rule, 
be  exclusively  relied  on.  The  evidence  of  two  competent  wit- 
nesses may  be  sufficient.^^ 

85  Riley    V.    Allen,    54    X.    J.    Ch.  88  Broun   v.   Garten,    89    lo.    .373; 

495;    35    Atl.    654,    citing    Johnson       Laird    v.    Laird,    115    Mich.     352; 
V.  Hubbell.  10  N.  J.  Eq.  332.  73  N.  W.  382. 

80  Barrett    v.    Geisinger,    179    111.  89  Newton  v.  Field,  98  (Ky.) ,  186  ; 

240.  32  S.  W.  623. 

87  Svanburg  v.  Fosseen,  75  Minn. 
350;  78  N.  W.  4;  43  L.  R.  A. 
427. 


96  LAW     or     WILLS. 

The  alleged  beneficiary  is  not  a  competent  witness  to  testify 
to  the  existence  of  a  contract  to  make  such  beneticiary  the 
heir  of  the  promisor,  the  transaction  being  with  a  Jccedent.^^ 

Where  the  contract  was  in  writing,  but  has  been  lost  or  de- 
stroyed, the  mother  of  the  promisee  may  testify  to  the  terms 
of  the  agreement ;  and  where  it  appears  from  the  t^'stimony 
that  the  promisor  had  agreed  in  writing  tliat  he  would  leave 
to  the  promisee  a  child's  share  of  his  estate,  and  whore  other 
disinterested  witnesses  testify  that  promisor  spoke  of  promisee 
as  his  daughter,  and  as  such  was  in  the  habit  of  introducing 
her  to  his  friends;  that  she  was  married  at  his  house  and  with 
his  consent;  that  at  the  birth  of  her  child  he  congratulated  him- 
self on  being  a  grandfather;  and  that  in  an  auto-biogra})hical 
article  he  spoke  of  her  adoption,  such  evidence  was  held  suffi- 
cient to  support  a  judgment  in  favor  of  a  promisee,  even 
though  the  draftsman  of  the  written  contract  could  not  remem- 
1>er  what  the  contract  contained  with  reference  to  the  prom- 
isor's provision  for  her  after  his  dcath.^^ 

xVnd  where  the  evidence  is  conflicting,  proof  that  the  will  was 
made  in  pursuance  of  the  contract,  and  that  thereupon  oppo- 
sition to  the  foreclosure  of  a  mortgage  owned  by  the  promisor 
was  withdrawn  f which  was  claimed  as  consideration  for  the 
promise  to  make  the  will),  was  held  to  turn  the  preponderance 
in  favor  of  the  promisee. ^^ 

In  the  last  example  there  was  evidence  tending  to  show  the 
existence  of  a  definite  contract  to  make  a  will.  It  must  be 
distinguished  from  the  cases  where  the  only  evidence  is  that 
the  will  was  made,  and  that  the  act  alleged  as  a  consideration 
was  done.  Such  evidence  does  not  establish  the  existence  of  a 
contract.  Thus,  evidence  that  on  the  same  day  two  sisters  made 
similar  wills  does  not  of  itself  show  that  this  was  done  in  pur- 
suance of  a  contract  by  which  each  was  to  make  her  will  in 
consideration   of  the   other's   so   doins;.^^ 


90  Renz    v.    Drury,    57    Kan.    84 ;  92  Gardner  v.  Gardner,  49  S.  Car. 
(and  under  the  Kansas  Statute  the  62:   26   S.  E.   lOOL 

husband  of  such  alleged  beneficiary  93  Edson    v.    Parsons,    15.5    N.    Y. 

is   not   competent).  555:    50   X.   E.   265,   affirming   s.    c. 

91  Burns  v.  Smith,  21  Mont.  251  :  .32  X.  Y.  S.  10.36:  85  Hun.  26.3. 
53  Pac.  742. 


LAW     OF     WILLS. 


97 


Also  evidence  tliat  the  alleged  promisor  had  referred  to  the 
alleged  promisee  as  her  adopted  daughter,  and  had  stated  to 
others  that  it  was  her  intention  to  leave  her  property  to  her 
adopted  daughter,  is  not  sufficient  to  establish  the  existence  of 
a  contract  to  make  her  will.^'* 

As  to  pleading  and  evidence  in  such  cases  see  also.^^ 

§82.     Parties. 

In  an  action  to  enforce  specific  performance  (so-called)  of 
a  contract  to  make  a  will,  the  proper  plaintiff  is  the  promisee ; 
the  proper  defendants  are  those  who  have  the  adverse  interest 
in  the  property  with  reference  to  which  the  trust  is  sought  to 
be  enforced.  Where  property  has  been  devised  to  a  sole  de- 
visee he  is  the  only  necessary  party ;  the  executor  and  the  heirs 
not  being  necessary  to  the  determination  of  such  action,^^ 

§83,     Time  at  which  statute  of  limitations  begins  to  run. 

As  before  stated  no  right  of  action  accrues  during  the  life- 
time of  the  testator.  His  death  is  the  time  at  which  a 
right  of  action  first  accrues,  and  the  time  therefore  from  which 
the  period  of  limitations  is  to  be  reckoned.^''^ 

91  Teats  V.  Flanders,  118  Mo.  6G0.  to    show    both    the    terms    of    the 

In    this    case    it    must    be    noticed  agreement     and     the     consideration 

that  the  surrounding  facts  did  not  therefor. 

bear  out  plaintiff's  claim  of  a  s-*  Purviance  v.  Purviance,  14 
promise  upon  consideration.  Plain-  Ind.  App.  2G9 ;  42  N.  E.  364 ;  Wad- 
tiff,  the  alleged  promisee,  lived  with  dell  v.  Waddell,  43  S.  W.  46  (Tenn. 
the     alleged     promisor     only     three  Ch.  App ) . 

years.       She     received     apparently  oe  Fogle    v.    Church,    etc.,    48    S. 

ample  compensation  for  two  of  these  Car.  86. 

three   years.      During   the   last   six-     "      o^  Jones   v.   Perkins,   76   Fed.  82; 

teen  years  of  the  life  of  the  alleged  Manning    v.    Pippen,    86    Ala.    3,57 ; 

promisor  she  was  alone,  and  in  need  11    Am.    St.    Rep.    46;       Avery    v. 

of  care,  but  she  r'eceived  none  from  Moore,    34    111.    App.     115. 
complainant.      The    evidence    failed 


98  LAW     OF     WIILS. 


CHAPTER  VIII. 

CAPACITY  TO  MAKE  A  WILL. 

§84.     History  of  the  law  of  testamentary  capacity. 

In  the  sixteenth  and  seventeenth  centuries  capacity  to  make 
a  will  was  controlled  by  a  different  system  of  law  from  that 
regulating  capacity  to  make  a  testament.  As  the  testament 
was  left  to  the  ecclesiastical  courts,  the  rules  of  ecclesiastical 
law  governed  the  capacity  of  the  testator.  Wills  were  re- 
garded rather  as  conveyances  of  land,  under  the  Statute  of 
Wills,  and  the  capacity  of  one  to  make  a  will  was  controlled 
by  the  statute,  and  by  the  principles  of  common  law.^ 

On  some  points  these  two  systems  coincided,  on  others  they 
w<Jre  widely  divergent. 

The  progress  of  modem  legislation  has  gradually  brought 
these  two  systems  of  law  together,  and  at  present,  in  most  ju- 
risdictions, the  same  rules  of  capacity  apply  to  Avills  and  tes- 
taments alike.  In  a  few  jurisdictions  some  minor  points  still 
separate  the  two. 

§85.     Time  at  which  capacity  must  exist. 

The  most  convenient  method  of  discussing  this  subject  is  to 
regard  capacity  to  make  a  will  as  the  normal  type,  and  to  dis- 
cuss the  cases  of  incapacity  as  exceptions  thereto.  While  not 
strictly  logical,  this  method  is  as  accurate  in  its  results  as  any. 

iBlackstone's  Comm.  Bk.  2,  pp. 
375,  497  ;  Coke  on  Littleton,  89,  See. 
123,   note. 


LAW    OF    WILLS.  99 

Before  discussing  these  disqiialiiicatioiis  in  detail  we  must 
remember  that  in  every  case  the  question  is,  Avhether  the  tes- 
tator was  duly  qualified  or  not  at  the  time  of  the  execution  of 
the  wilL2 

If  he  was  qualified  at  that  time  and  afterwards  becomes  dis- 
qualified, this  has  no  effect  upon  the  validity  of  the  will  f 
excepting  such  cases  as  coverture,  whereby  the  will  of  the 
woman  is  revoked  by  the  operation  of  law.  If  the  testator 
was  not  qualified  at  the  time  of  making  his  will,  and  after- 
wards becomes  qualified,  tliis  will  not  give  validity  to  his  will.^ 
This  does  not,  of  course,  mean  that  he  may  not  afterwards  re- 
publish the  will.  As  we  shall  see  in  the  chapter  on  re-publi- 
cation, a  re-execution,  which  is  practically  and  legally  the 
same  in  effect  as  making  a  new  will,  is  now  necessary  to  con- 
stitute re-publication.^ 

§86.     Outlawry  and  attainder. 

Some  of  the  disqualifications  recognized  by  the  old  law  have 
become  obsolete.  An  outlaw  was  disqualified  from  making  a 
testament  of  personalty,  as  his  interests  in  his  personalty  were 
determined  by  his  outlawry.^ 

Under  the  doctrine  of  attainder,  a  convicted  felon  had  no 
interests  in  property  which  he  could  dispose  of  by  will. 

Under  modem  constitutions,  attainder  is  abolished  with  all 
its  consequences ;  and  unless  specifically  forbidden  by  statute,, 
a  convict  may  make  a  will.  It  is  in  some  states,  however,  pro- 
vided by  statute  that  a  convict  can  not  make  a  valid  will.''^ 

2  Gierke  V.  Cartwright,  1  Phillim,  ford,    31    W.    Va.    G59;    Martin    v. 

Ecc.  R.   90;  Sturdevant's  Appeal,  71  Thayer,    37    W.    Va.    38. 

Conn.   392;    Harp  v.   Parr,   168   111.  3  gee  eases  cited  in  preceding  note. 

459;  Denning  v.  Butcher,  91  lo.  42-5;  *  See  cases  cited  in  preceding  note 

Ettcr    V.    Armstrong,    46    Ind.    97;  and  Osgood  v.  Breed,  12  Mass.  525; 

Gregory  v.   Gates,   92   Ky.   532;    18  Burkett  v.   Whittemore,   36   S.   Car. 

S.  W.  231 ;  Shailer  v.  Bumstead,  99  428. 

Mass.    112;     In   re   Merriman,    108  ^  See  Gh.  XVI,  Republication. 

Mich.   454;    Von   de   Veld   v.   Judy,  «  Vin.  Ab.  Devises,  19  Noy's  Gomp. 

143    Mo.    348;    Reichenbach   v.    Ru-  La.  99. 

dach,  127  Pa.  St.  564 ;  Kerr  V.  Luns-  7  Kenyon   v.    Saunders,    18    R.    I. 

590. 


100  LAW    OF    WILLS. 

§87.     Alienage. 

At  common  law  an  alien  could  not  devise  his  realty  in  dero- 
gation of  tlie  rights  of  the  state  ;^  hut  a  denizen  could  devise 
freehold  realty  acquired  heforc  letters  of  denization  were  is- 
sued to  him/^  In  most  states,  all  restriction  upon  the  prop- 
erty rights  of  aliens  has  hecn  aholished  .by  statute.^  *^ 

§88.     Nonag-e. 

By  the  ecclesiastical  law  it  was  definitely  settled  after  some 
debate  that  males  of  fourteen  years  and  over  and  females  of 
twelve  years  and  over  could  make  testaments  disposing  of  per- 
sonalty.-^^ 

By  the  Wills  Act  of  22  Hen.  VIII,  c.  1,  and  34  Hen. 
YIII,  c.  5,  it  was  indirectly  provided  that  infants  could  not 
make  wills  devising  real  estate,  by  excepting  them  from  the 
provisions  of  the  act  which  authorized  wills  of  real  property.^  ^ 
The  modem  American  statutes  are  generally  based  on  the 
Wills  Acts  of  Henry  VIII  in  this  respect,  and  provide  that 
persons  must  be  of  full  age  in  order  to  have  the  capacity  to 
make  a  will  or  testament.  What  "full  age"  is,  depends  upon 
the  provisions  of  local  statutes  upon  that  subject,  which  are 
impliedly  adopted  by  reference  thereto  in  the  Wills  Acts.  In 
many  jurisdictions  full  age  is  twenty-one  for  males  and 
females.^  ^  In  others  it  is  twenty-one  for  males  and  eighteen 
for  females.-^ ■* 

Some  few  jurisdictions  allow  "wills  of  personalty,"  that 
is,  testaments,  to  be  made  at  an  earlier  age  than  wills  passing 

sGeere  v.  Stone,  47  L.  T.  434.  Hyde  v.  Hyde,  Pre.  Ch.  310;  Bishop 

sFourdin    v.    Gowdey,    3    Myl.    &  v.   Sharp,   2   Vern.   469;    {Ex  parte 

K.  383;  3  L.  J.  Ch.  171.  Holyland,  11  Ves.  10;  8  R.  R.  67). 

10  To  save  repetition  the  discus-  12  Black.  Comm.  Bk.  2  No.  375 ; 
sion  of  the  common  law  restrictions  Vin.  Ab.  20;  Bacon's  Abr.  (B), 
upon  the  ownership  of  property  by  p.  481;  See  Wills  Act,  Sec.  1.5, 
aliens  as  affecting  the  law  of  wills  note. 

is    reserved    for    the  chapter.  See  is  Luper  v.  Wertz,  19  Ore.  122. 

Sees.  150,  151.  ^^  Harrison    v.    Moore,    64    Conn. 

11  Black.      Comm.  Bk.      2.  497;  344. 
Bacon's     Abr.    WiRs  (  B.  ),    p.  481; 


LAW     OF     WILLS. 


101 


realty.^  ^  So  in  a  case  where  the  proceeds  of  the  sale  of  land 
were  devised  to  a  boy  between  eighteen  and  twenty-one,  and 
the  boy  died,  having  disposed  of  these  proceeds  by  his  last 
will  and  testament,  it  was  held  that  the  validity  of  the  second 
bequest  turned  upon  the  question  whether  under  the  fii-^t  will 
the  proceeds  arising  from  the  sale  of  the  real  estate  were  to  be 
treated  as  real  or  personal  property,  and  such  proceeds  being 
held  to  be  personal  property,  the  second  bequest  was  held  to 
be  valid,  as  in  Alabama  a  testator  of  eighteen  may  dispose  of 
personalty.^  ^ 

As  in  every  state  there  are  statutes  upon  this  subject,  they 
must  be  carefully  consulted  whenever  the  question  arises. 
Whatever  age  is  fixed  by  statute  as  necessary  for  testamentary 
capacity,  the  person  in  question  possesses  testamentary  capac- 
ity on  the  day  before  the  birthday  upon  which  he  arrives  at 
the  age  in  question.^ '^ 

§89.     Coverture  at  common  law. — Testaments. 

Under  the  common  law,  which  was  followed  on  this  point  in 
the  ecclesiastical  courts,  a  married  woman  could  not  make  -i 
testament  passing  personal  property  without  the  consent  of 
her  husband,^^  In  fact,  under  the  common  law  she  might 
and  probably  would  have  no  personal  property  to  pass,  if  her 
husband  chose  to  exert  all  his  legal  rights  over  the  i:»ersonal 
property  which  was  hers  at  marriage.^ ^  Upon  her  marriage 
her  personal  property,  in  possession,  became  her  husband's  at 
once,  except  her  paraphernalia;  while  he  had  the  power  to  re- 
duce her  personal  property  in  action  to  his  possession,  and  by 
so  doing  to  make  it  his  own. 

15  Luper  V.  Wertz,  19  Ore.  122.  Whittemore,  36  S.  Car.  428 ;  Dillard 

16  Allen  V.  Watts,  98  Ala.  384.        .  v.  Dillard's  Exr's,  78  Va.  208;     21 

17  Bacon's  Abr.  Wills  (B) ,  p.  481 ;       S.  E.  609. 

Ex  parte  Holyland,   11   Ves.   11;    8  "She  is  under  a  civil  disqualifica- 

R.  E.  67.  tion  arising  from  want  of  free  agen- 

18  Burton  v.  Holly,   18  Ala.  408;  cy  and  not  from  want  of  judgment." 
Anderson  v.  Miller,   6  J.  J.  Marsh.  Marston  v.  Norton,  5  N.  H.  29.5. 
(Ky),   569;   Morse  v.   Thompson,   4  lo  Black.  Com.  Bk.  I,  pp.  442-44.5; 
Cush.     (Mass.),    662;     Marston    v.  Bishop   v.    Blair,    36   Ala.   80   Allon 
Norton,    5    N.    H.    205;    Burkett    v.  v.  Hooper,  50  Me.  371. 


102  LAW     OF     WILLS. 

Even  under  the  common  law  a  married  woman  could  under 
certain  circumstances  exercise  the  powers  of  a  feme  sole  in  or- 
dinary business  matters.  These  circumstances  generally  in- 
volved the  absolute  or  temporary  disqualification  of  the  hus- 
band to  act  for  himself  and  wife.  Thus  if  he  were  civilly 
dead,-'^  or  had  abjured  the  realm,^^  or  were  a  convicted  felon,^- 
the  wife  would  be  empowered  to  act  for  herself.  Under  sucli 
circumstances  she  Avas  empowered  by  law  to  dispose  of  her 
property  by  will  or  testament. 

A  married  woman  might,  furthermore,  hold  property  in  a 
representative  cajnicity  ;  over  this,  of  course,  her  husband  could 
exercise  no  control ;  and  of  such  property  she  could,  therefore, 
make  a  valid  testament."^ 

A  married  woman  might  make  a  testament  of  personalty 
with  the  consent  of  her  husband.^^  To  validate  her  will  such 
consent  must  not  be  a  general  consent  to  make  any  will,  but  a 
specific  consent  to  make  the  particular  will  in  question.-^  This 
consent  was  not  irrevocable  when  given.  The  husband  might 
revoke  such  consent  at  any  time  up  to  the  death  of  the  wife, 
and  probably  up  to  the  time  that  the  will  was  offered  for  pro- 
bate. If  he  then  acquiesced  in  such  testament  and  allowed  it 
to  be  probated,  he  was  bound  thereby  and  could  not  afterwards 
retract.^^  Further,  if  he  acquiesced  in  the  will  after  the  death 
of  the  wife,  and  induced  the  executor  to  act  thereunder,  he  could 
not  refuse  his  assent  at  probate,^'''  and  in  one  case  it  was  held 


2oCvitter  V.  Butler.  25  X.  H.  343.  Ves.  60:  Stevens  v.  Bagwell,  15  Ves. 

21  Countess  of  Portland  v.  Prod-  139;  Marston  v.  Norton,  5  N.  H. 
gers,  2  Vern.  104  (banished  by  act  205;  Eeed  v.  Blaisdell,  16  N.  H. 
of  Parliament)  ;   Atlee  v.  Hook,  23  194. 

L.  J.  Ch.  776;  Newsome  v.  Bowyer  25  Rex     v.    Bettefwortli,    2    Stra. 

(transported),  3  P.  Wms.  37.  891;   44  L.  J.  Ch.   345;   Willock  v. 

22  Goods  of  Coward,  4  Sw.  &  Tr.  Noble,  L.  E.  7  H.  L.  580 ;  32  L.  T. 
46:  34  L.  J.  P.  120;  11  Jur.  (N.  S.)  419:  23  W.  Pv.  809;  Cutter  v.  Butler, 
569;  13  L.  T.  210;  Newsome  v.  25  N.  H.  343;  Kurtz  v.  Savior,  20 
Bowyer,  3  P.  Wms.  37.  Pa.  St.  205. 

23'Tucker    V.    Inman,    4   M.    &    G.  26  Brook  v.  Turner,  2  Mod.   170; 

1049;  Lee  v.  Bennett,  31  Miss.  119;  Ew  parte  Pane,  16  Sim.  406;    {In  re 

West  X.  West,  3  Rand.   (Va.)   373.  Trustees'  Relief  Act). 

24Viner's  Abr.  Devises,  Sees.  8-  27  Brook  v.  Turner,  2  Mod.  170. 
10;    Marlborough    v.    Godolphin,    2 


LAW     OF     WILLS. 


103 


that  the  husband  could  not  refuse  his  assent  to  probate  where 
he  had  expressly  assented  to  the  will  in  writing.^* 

The  general  rule  that  the  husband  could  refuse  assent  to  his 
wife's  will  at  the  probate  thereof  and  thus  keep  it  from  taking 
effect,  imless  he  had  by  his  o\\ai  acts  renounced  this  right,  was 
clearly  established;  but  it  was  a  matter  of  doubt  as  to  the 
nature  of  the  acts  of  the  husband  by  which  he  renounced  this 
right. 

The  consent  of  the  husband  was  effectual  as  waiver  of  his 
interests,  but  not  of  others.  When  the  husband  consented  to 
his  wife's  will,  but  died  before  his  wife,  it  was  held  that  im- 
less her  will  were  republished  it  was  of  no  effect  against  her 
next  of  kin.^^ 

This  common  law  rule  has  been  enacted  by  statute  in  some 
jurisdictions  and  enlarged  so  that  a  married  woman  may  make 
either  a  will  or  a  testament  if  her  husband  consents.  This  con- 
sent is  usually  required  to  be  in  writing.^^ 

It  has  been  held,  where  by  statute  his  "written  consent"  to 
his  wife's  will  was  necessary  to  its  validity,  that  his  signature  to 
a  petition  for  his  appointment  as  his  wife's  executor,  and  his 
offering  bond,  did  not  amount  to  a  written  consent  to  such 
will.3i 

A  decree  of  court  giving  a  married  woman  power  to  de- 
vise and  dispose  of  her  estate  as  if  she  were  a  feme  sole  does  not 
make  a  previously  executed  will  valid  without  republication.^^ 

§90.     Coverture   at  common  law. — Wills. 

The  original  Statute  of  Wills,  22  Hen.  VTII,  c.  1,  conferred 
testamentary  capacity  in  such  general  terms  that  married  wom- 
en were  apparently  included.-    It  was,  however,  doubtful  if, 

28Maas  V.   Sheffield,   10  Jur.  417.  "     3o  Gregory  v.  Gates,  92  Ky.  532: 

29  Bacon's   Abr.    Wills.    Sec.    482;  Hughes  v.  Faulkner    (Ky.)    (1900). 

Stevens  v.  Bagwell,  15  Ves.  .Ir.  139;  5G  S.  W.  642;  Tyler  v.  Wheeler,  160 

Cassell    V.    Vernon,    5    Mason,    332;  Mass.  206. 

Bradish  v.  Gibbs,  3  Johns.  Ch.  523;  si  Tyler  v.  Wheeler,  160  Mass.  206. 

Anderson  v.  Miller,  6  J.  J.  Marsh.  32  Gregory  v.  Gates,  92  Ky.  532 ; 

569 ;  Smelie  v.  Reynolds,  2  De  Saus  18  S.  W.  231. 

66   Grimke  v.   Grimke,   1    De   Saus 

366. 


104  LAW     OF     WILLS. 

under  the  common  law  theory  of  the  absolute  merger  of  her 
identity  in  law  with  that  of  her  husband,  such  testamentary 
power  could  be  exercised.  This  question  was  promptly  settled 
by  the  statute  34  Hen.  VIII,  c.  5,  which  expressly  excepted 
married  women  from  the  class  of  those  authorized  to  make 
a  will.^^ 

Under  the  Wills  Act,  therefore,  a  ma:rried  woman  could  not 
make  a  will  of  lands  even  with  her  husband's  consent.^'*  Even 
her  will  devising  her  realty  to  her  husband  was  a  nullity.^^ 

§91.     Capacity  of  married  woman  under  powers. 

The  common  law  did  not  deny  to  a  married  woman  the  right 
to  execute  a  power  conferred  upon  her,  even  when  such  power 
involved  the  right  to  invest  another  with  the  title  to  realty. 
It  followed  that  if  by  the  terms  of  such  power  it  could  be  ex- 
ecuted by  will,  a  married  woman  could  make  a  will  appoint- 
ing the  beneficiary  of  such  power.^^  This  power,  while  usually 
provided  for  by  ante-nuptial  agreement,  may  be  conferred  by 
deed  during  coverture.^*^  This  power  of  testamentary  dispo- 
sition extended  not  only  to  the  principal,  but  also  to  savings 
out  of  the  income  of  realty.^** 

33  Black.  Com.  Bk.  2,  p.  497.  15G ;  Hawkins  v.  Kemp,  3  East,  410 ; 
This  amendment  was  said  to  be  en-  Hughes  v.  Wells,  13  E.  L.  S.  Eq. 
tirely  unnecessary  and  'idle.'  Sir  389;  In  re  Hornbuckle,  L.  R.  15  P. 
George  Caverlye's  Estate,  3  Dyer,  D.  149;  Anderson  v.  Miller,  6  J.  J. 
354a.  Marsh.   (Ky.)  573;  Osgood  v.  Breed, 

34  Bacon's  Abr.  Wills,  B  p.  481;  12  Mass.  525;  Schley  v.  McCeney, 
Fitch  V.  Brainerd,  2  Day,  163 ;  30  Md.  26(i ;  Wagner  v.  Ellis,  7  Pa. 
Ploud.  526;  Piequet  v.  Swan,  4  St.  411;  Dunn's  Appeal,  85  Pa.  St. 
Mason,  443 ;  Osgood  v.  Breed,  12  94 ;  Thorndike  v.  Reynolds,  22  Gratt. 
Mass.    525;    Marston    v.    Norton,    5  (Va.)   21. 

N.    H.    205;    Bradish    v.    Gibbs,    3  37  Pride    v.    Bubb,    41    L.    J.    Ch. 

Johns.  Ch.  523.  105;  L.  R.  7  Ch.  64;  25  L.  T.  890; 

35  Fitch  V.  Brainerd,  2  Day,   163.  20  W.  R.  220. 

36  Pride  V.  Bubb,  41  L.  J.  Ch.  105;  38  Humphreys  v.  Richards,  25  L. 
L.  R.  7  Ch.  64;  25  L.  T.  890;  20  J.  Ch.  442;  2  Jur.  (N.  S.)  432;  4 
W.   R.   220;    Ross   v.   Ewer,   3   Atk.  W.  R.  432. 


LAW    OF    WILLS.  105 

§92.     Capacity  of  married  woman  in  equity. 

In  equity  a  married  woman's  capacity  to  make  a  will  dis- 
posing of  the  i^roperty  which  equity  recognized  as  hers  was 
well  established,  though  the  limitations  to  such  capacity  were 
not  definitely  settled. 

The  chief  differences  between  the  testamentary  capacity  of 
a  married  woman  in  equity  and  at  common  law  were  as  to 
(a)  powers  of  disposing  of  her  own  property  by  will,  reserved 
to  her  by  agreement  with  her  husband;  and  (b)  the  power  of 
disposing  of  her  separate  estate  by  will.  If  by  contract  before 
marriage,  or  after  marriage  if  upon  a  new  consideration,  the 
woman  reserved  power  to  dispose  of  her  separate  property  by 
will,  equity  would  enforce  such  contract.  'No  deed  to  trustees 
was  necessary.^® 

When  property  was  settled  upon  a  married  woman  free  from 
the  control  of  her  husband,  equity  recognized  the  woman  as  the 
owner  of  such  separate  estate,  with  all  the  incidents  of  ordi- 
nary ownership,  including  the  right  to  dispose  of  it  by  will.^° 

Under  the  rules  of  equity  separate  property  of  a  married 
woman  acquired  after  the  execution  of  the  will,  as  well  as  that 
owned  at  the  time  of  the  execution  of  the  will,  may  be  de- 
vised.^ ^ 

In  some  jurisdictions  the  power  to  dispose  of  the  equitable 
separate  property  by  will  need  not  be  expressly  conferred  in 
the  instrument  granting  the  estate.^^ 

39  Hall     V.     Waterhouse,    5    Giff,  9    Yes.    3G9;    Peacock    v.    Monk,    2 

G4;    11  Jur.    (N.  S.)    361;   12  L.  T.  Ves.    190;    Hearle   v.   Greenbank,    3 

297;    13   W.    K.    633;     Johnson    v.  Atk.    (709);    1    Ves.    303;    Hall   v. 

Johnson,  Ky.    ('94),  24  S.  W.   628.  Waterhouse,    5    Giff.    04:    G    N.    R. 

4oFettiplace  v.  Gorges,  1  Ves.  Jr.  20;    11  Jur.    (X.  S.)    361;    12  L.  T. 

46;   1  R.  R.  79;   Rich  v.  Cockell,  9  297:     13    W.    R.     633:     Taylor    v. 

Ves.   Jr.   369;    Peacock   v.   Monk,   2  Meads,    4    D.    G.    J.    &    S.    597;    5 

Ves. -190;    Hall    v.    Waterhouse,    5  N.   R.   348;    34   L.   J.   Ch.   203;    11 

Giff.   64;    11   Jur.    (N.   S.)    361;    12  Jur.     (N.    S.)     166;     12    L.    T.    6; 

L.  T.  297:   13  W.  R.  633.  13  W.  R.  394;  Emmert  v.  Hays,  89 

41  Charlemont  V.  Spencer,  11  L.  R.  111.    11;    Kelly   v.    Aired,    6.5    Miss. 

'Tr-  490.  495 ;  Cutter  v.  Butler,  25  N.  H.  343; 

*2  White    V.    Dillon,    Wall.    Lyon,  Barnes  v.  Irwin,  2  Doll.   (Pa.)   199; 

302:    Fettiplace   v.    Gorges,    1    Ves.  1   Am.   Dec.   278. 
Jr.  46:   1  R.  R.  79;  Rich  v.  Cockell, 


106  LAW    OF     WILLS. 

In  other  jurisdictions  it  has  been  held  that  a  married  woman 
can  exercise  over  her  separate  realty  only  such  testamentary 
power  as  is  expressly  conferred  by  the  instrument  creating  the 
estate."*^  ^• 

§93.     Capacity  of  married  woman  under  modern  statutes. 

These  rules  of  the  capacity  of  a  married  woman  have  been 
discussed  in  a  very  elementary  way,  because  they  are  now 
largely  obsolete.  Legislation,  during  the  past  century,  has 
swept  them  away  in  almost  all  jurisdictions.  This  change 
has  been  accomplished  by  statutes  of  three  different  types. 

1.  In  some  states  the  Wills  Acts  have  given  testamentary 
capacity  to  "any  person"  having  certain  requisite  qualifications, 
without  excepting  married  women,  and  the  courts  have  held  that 
such  statutes  conferred  testamentary  capacity,  holding  that  the 
courts  could  not  make  an  exception  which  the  legislature  had 
declined  to  make.  Thus  in  Ohio  under  a  statute  substantially 
the  same  as  the  original  Wills  Act  of  Henry  VIII  it  was  held 
that  a  married  woman  of  full  age,  being  a  ''female  person  of 
the  age  of  eighteen  years  and  upward,"  could  make  a  will.'*^ 
It  must  be  conceded,  however,  that  by  the  weight  of  authority 
a  married  woman  is  impliedly  excepted  from  the  operation  of 
the  Wills  Acts,  and  that  the  use  of  general  language  does  not, 
in  most  jurisdictions,  operate  to  include  married  women.^^ 

43  West  V.  West,  3  Rand.  (Va.),  to  offset  a  contrary  obiter  in  Reese 
373.  V.  Cochran.  10  Ind.  195. 

44  Allen  V.  Little,  5  Ohio,  65.  To  45  Osgood  v.  Breed,  12  Mass.  525. 
the  same  effect  is  the  holding  that  The  Massachusetts  statute  gave  the 
the  words  'any  person'  in  the  Wills  power  of  devising  to  'any  person 
Act  includes  a  married  woman.  lawfully  seized  of  lands,'  and  the 
Bennett  v.  Hutchinson,  11  Kan.  398.  Supreme  Court  held  that  this  pro- 

In  Noble  v.  Enos,   19  Ind.  72,  is  vision  could  not  apply  to  a  married 

an  obiter  to  the  same  effect.     As  the^  woman,    as    she   was    seized    jointly 

legislature  had  passed  a  declaratory  with    her    husband,    in    her    right, 

act  to  the  effect  that  the  Wills  Act  The  New  Hampshire  statute  was  a 

should    be    so    construed    as    to    in-  copy  of  the  Massachusetts,  and  was 

elude  married  women,  which  declar-  construed  in  the  same  way  in  Mar- 

atory  act  had  taken  effect  before  the  ston   v.   Norton,    5   N.    H.    205.      A 

cause  of  action  arose,  this  remark  is  similar   holding   is   found   in  Baker 

merely  an  obiter  and  can  be  taken  v.  Chastang,  18  Ala.  417. 


1()7 

LAW    OF    WILLS.  ^^' 


2  In  other  jurisdictions  the  separate  estate  of  a  married 
woman  has  been  so  extended  by  statute  as  to  give  her  far  more 
power  of  disposing  of  her  property  than  she  possessed  m  equity, 
and  in  many  states  to  give  her  practically  complete  testamen- 
tary power  over  her  o^m  property.^^  In  other  states,  however, 
the  scope  of  the  separate  property  acts  is  simply  to  secure  a 
married  woman's  separate  property  to  her  own  use  free  from 
the  claims  of  her  husband  or  his  creditors.  In  these  jurisdic- 
tions, therefore,  a  statute  securing  separate  property  to  a  mar- 
ried woman  is  held  not  to  confer  testamentary  capacity.*' 

3.  The  second  type  of  statute  has  been  largely  superseded 
by  the  third.  By  this  testamentary  power  is  specifically  con- 
ferred upon  married  women :  and  she  may  dispose  of  her  prop- 
erty by  will  as  if  she  were  a  feme  sole^^ 

Under  the  English  Married  Woman's  Act  of  1882  only  prop- 
erty owed  by  the  married  woman  while  under  coverture  could 
be  devised  by  her,^^  and  if  she  acquired  property  after  she  had 
made  her  will  and  before  the  death  of  her  husband,  such  prop- 
erty would  not  pass  unless  the  will  were  republished  after  the 
death  of  the  husband.^^  These  statutes  were  not  usually  retro- 
active. Hence  a  will  made  before  the  statute  conferred  ca- 
pacity was  not  made  valid  by  such  statute,  unless  republished 
afterwards.5^     But  the  English  :^^arried  Woman's   Property 

46Einmert   v.    Hays,   89    111.    11;  (1890),  59  Pac.    .556;    Sanborn    v 

Kelly  V.  Aired,  45  Miss.  495;   San-  Batchelder,  51   N.  H-  426 ;   Burke  t 

born  V.   Batchelder,   51   N.  H.  426 ;  v.  Whittemore    36  S.  Car^  428  ;  Dd- 

Wakefield  v.  Phelps,  37  N.  H.  295 ;  lard  v.  Dillard's  Ex  rs     78  Va.  208  , 

Rathbone  v.  Hamilton,  4  App.  D.  C.  21  S.  E.  669;  Kiracofe  v.  Kiracofe, 

475.      (But  gifts  from  the  husband  93  Va.  591.  ^     t    nu    (^no 

to  the  wife  can  not,  in  the  District  ^^  In  re  Price,  54  L.  J.  Ch.  509; 

of    Columbia,     be    devised     by    her  28   Ch.  D.  709 ;    52   L.  J    ^30;    33 

under  such  statute.)  "  W.  R.  20  ;  In  re  Young   54  K  J.  Ch 

.7  Cain  V.  Bunkley,  35  Miss.  119;  1065;  28  Ch.  D.  705;  52  L.  T.  .54, 

Compton  V.  Pierson,  28   N.  J.  Eq.  33  W.  R.  729. 
^^^  '  5oWillock  V.  Noble,  44  L.  J.  Ch. 

Contra,  Mosser  v.  Mosser,  32  Ala.  345;   L.  R.  7  H.  L.  580;    32  L.  T. 

■  J  419:  23  W.  R.  809. 

\'sin  re  Price,  54  L.  J.  Ch.  509;  ^i  Gregory  v.  Gates,  92  Ky.  532; 

28  Ch.  D.  709:  52  L.  T.  430;  33  W.  Burkett  v.   Whittemore,   36   b.  Car. 

R.   20;   In  re  Young,   54  L.  J.   Ch.  428. 

1065-  28  Ch.  D.  705:  52  L.  T.  7.54;  Contra,  as    to    property    acquired 

33    W     R     729:    Emmert    v.    Hays,  afterv/ards  under  the  statute.    In  re 

89  m    1:   Scott  V.  Harkness   (Ida.)  Bowon  (1892),  2  Ch.  291. 


229 


551. 


108  LAW    OF    WILLS. 

Act  of  1893  was  retroactive  in  the  popular  sense,  since  it  made 
valid  all  wills  of  married  women  who  died  after  the  passage 
of  the  act,  whether  their  wills  were  valid  before  or  not,  inde- 
pendent of  any  subsequent  republication.''^ 

Where  the  statute  conferring  testamentary  power  upon  mar- 
ried women  prescribes  the  extrinsic  elements  of  wills  made  by 
them,  such  form  of  will  is  the  only  one  which  a  married  woman 
can  make.^^ 


§94.     Lack  of  mental  capacity. — Is  perfect  sanity  a  requisite 
of  testamentary  capacity? 

By  the  provisions  of  the  Wills  xict  which  merely  declare  the 
common  law  rules,  a  person,  to  have  testamentary  capacity, 
must  be  of  sound  mind,  or,  as  it  is  put  with  more  redundancy, 
of  sound  and  disposing  mind  and  memory. 

What  constitutes  mental  capacity  to  make  a  will  is  a  sub- 
ject upon  which  the  courts  have  in  the  past  differed  somewhat 
in  their  decisions,  and  as  is  usual  still  more  in  their  dicta.  The 
attempt  has  been  made  again  and  again  to  select  some  arbitrary 
test  of  mental  capacity  by  which  to  gauge  testamentary  ca- 
pacity. We  shall  see  in  a  discussion  of  the  specific  forms  of 
mental  disease  and  weakness  some  of  the  tests  that  have  been 
attempted.  But  the  new  combinations  of  fact  presented  by 
later  cases  have  invariably  caused  the  courts  to  recede  from  the 
tests  thus  arbitrarily  selected  as  unjust  and  unreasonable. 

The  simplest  test  ever  proposed  for  determining  testamen- 
tary capacity  is  that  in  order  to  possess  testamentary  capacity 
a  testator  must  be  perfectly  sane.  If  this  test  were  adopted  it 
is  evident  that  all  inquiry  into  the  degree  of  insanity  and  its 
effect  upon  testator's  will  would  be  precluded.  This  is,  there- 
fore, the  first  of  these  various  tests  to  discuss  in  detail. 

The  early  view  of  the  English  courts  was  that  a  testator 

52  Tn  re  Wylie  (1895),  2  Ch.  116.  arate  estate  by  a  will   attested  by 

53  Scott  V.  Harkness  (Ida.)  witnesses.  ?lie  can  not  make  a  valid. 
(1899).  59  Pac.  556.  Hence,  where  holofiraphic  will  withoiit  witnesses: 
the  statute  prescribes  that  a  mar-  thouo-h  a  man  or  unmarried  woman 
ried  woman  may  dispose  of  her  sep-  may  make  such  a  will. 


LAW     OF     WILLS. 


109 


need  not  be  perfectly  sane  in  order  to  possess  sufficient  testa- 
mentary capacity.  Thus  one  afflicted  with  insane  delusions 
miffht  make  a  will  if  the  insane  delusions  were  not  of  a  sort 
to  affect  his  disposition  of  his  estate.^^  Subsequently  the  En- 
glish courts  seemed  disposed  to  recede  from  this  position,  and  to 
take  the  narrow  view,  that  in  order  to  possess  sufficient  mental 
capacity  to  make  a  will  one  must  be  perfectly  sane.^^  "If  dis- 
ease be  once  shown  to  exist  in  the  mind  of  the  testator,  it  mat- 
ters not  that  the  disease  is  discoverable  only  when  the  mind  is 
addressed  to  a  certain  subject  to  the  exclusion  of  all  others, 
the  testator  must  be  pronounced  incapable,"  is  the  often  quoted 
form  in  which  the  rule  has  been  stated.^ ^ 

The  view  now  entertained  by  English  courts  seems  to  be  the 
same  as  their  original  view,  namely,  that  one  who  is  not  per- 
fectly sane  may  make  a  valid  will ;  that  is,  that  testamentary 
mental  capacity  is  not  the  same  thing  as  perfect  sanity.^'^ 

The  American  courts  have  from  the  outset  held  to  the  prop- 
osition that  a  person  not  perfectly  sane  might  possess  sufficient 
mental  capacity  to  make  a  will.^^ 

In  Indiana  under  the  statute  no  one  of  "unsound  mind"  can 
make  a  will,^^  and  it  was  at  one  time  apparently  held  that  any 
unsoundness  of  mind,  even  though  it  had  no  effect  whatever 


54  Dew  V.  Clark,  5  Russ.  163 :  6  L. 
J.    (O.  S.)    Ch.   186. 

55  Waring  v.  Waring,  6  IVIoore  P. 
C.  341  ;  12  Jur.  947 ;  Smith  v.  Teb- 
bitt  L.  R.,  1  P.  398  ;  16  L.  T.  841 ; 
Dyce  V.  Troup,  Deane  Ecc.  Rep.  22. 

56  Smith  V.  Tebbitt,  L.  R.  1  P. 
398;  16  L.  T.  841;  16  W.  R.  18; 
36  L.  J.  P.  97. 

57  Banks  v.   Goodfellow,   39  L.  J. 
Q.  B.  237;  22  L.  T.  813;  L.  R.  5  Q. 
B.  549 ;  Smee  v.  Smee,  L.  R.  5,  P.  D. 
84;    49  L.  J.   P.  8 ;    28   W.  R.   703; 
44   J.    P.    220;    Goods   of    Bailey.    2 
Sw.    &    Tr.    156;    31    L.    .J.    P.    178 
7   Jiir.    (N.   S.)    712:    4  L.  T.   477 
Murfett    V.    Smith,    12    P.    D.    116 
57   L.   T.   498:    51   J.   P.    374. 

58  St.  Joseph's  Convent  v.  Garner 


66  Ark.  623 ;  53  S.  W.  298  ;  Durham 
V.  Smith,   120  Ind.  463;   Nieman  v. 
Schnitker,   181   111.   400;   Hudson  v. 
Hughan,    56    Kan.    152;    Bulger    v. 
Ross.  98  Ala.  267 ;  Gardner  v.  Lam- 
bach,   47   Ga.    133;    Wallis   v.   Luh- 
ring,   134   Ind.   447;    144   Ind.   463; 
Blough  V.  Parry,  40  N.  E.  70;  Wil- 
liams    V.     Williams,     90     Ky.     28 
Benoist    v.    Murrin,    58    Mo.    307 
Couch    V.    Gentry,     113    Mo.    248 
Clapp  V.   Fullerton,   34  N.  Y.   190 
Pidcock  V.   Potter,   68   Pa.   St.   342 
Schreiner  v.  Schreiner,   178   Pa.   St, 
57,   and   see   cases   cited  under   Sec 
104   et  seq.     Martin  v.   Thayer,   37 
W.  Va.  38. 

59  Noble  V.  Enos,  19  Ind.  72. 


110  LAW     OF     WILLS. 

upon  the  will,  destroyed  testamentary  capacity.^"  This  view 
has  since  been  abandoned,  and  it  is  now  held  that  unsoundness 
in  the  statute  means  unsoundness  according  to  the  standard  of 
the  law  on  the  subject  of  wills.  Willett  v.  Porter  is  distin- 
guished and  Eggers  v.  Eggers  is  exj^ressly  overruled  in  the 
cases  cited.^^ 

Hence,  the  mere  fact  that  testator's  mind  was  so  affected  as 
to  cause  him  to  attempt  suicide,  in  which  he  ultimately  was 
successful,   is   not   inconsistent  with   testamentary   capacity.*^^ 

Accordingly  it  is  error  to  charge  in  a  contest  that  in  order 
to  make  a  will  a  testator  must  have  a  sound  mind ;  that  is  "a 
mind  wholly  free  from  error."  ^'^ 

So,  also,  it  is  error  to  charge  that  "unsoundness  of  mind  em- 
braces every  species  of  mental  incapacity  from  raging  mania 
to  that  delicate  and  extreme  feebleness  of  mind  which  de- 
generates into  unconsciousness" ;  since  this  includes  cases  of 
sickness,  and  "weak  but  sufficient  minds."^'* 

Even  where  the  statute  makes  use  of  the  expression  "unsound 
mind"  in  pointing  out  who  may  not  make  a  will,  this  term  is 
held  to  have  its  common  law  meaning.^^ 


§95.     Is  criminal  responsibility  a  test  of  testamentary  capacity? 

While  some  few  courts  have  suggested  that  the  standard  for 
testamentary  capacity  should  be  measured  by  that  for  crim- 
inal capacity,  the  great  weight  of  authority  is  to  the  effect 
that  as  from  the  nature  of  the  two,  no  comparison  between 

60  Willett  V.  Porter,  42  Ind.  250 ;  62  Koegel  v.  Egner,  54  N.  J.  Eq. 
Eggers  V.  Eggers,  57   Ind.  461.  623;   Goods  of  Bailey,  2   Sw.  &  Tr. 

61  Burkhart  v.  Gladdish,  12.'?  156;  31  L.  J.  P.  178;  7  Jiir.  (N.  S.) 
Ind.  337;  Blough  v.  Parry,  144  Ind.  712;  4  L.  T.  477. 

463,  citing  Turner  v.  Cook,  36  Ind.  g3  Schreiner  v.  Schreiner,  178  Pa. 

129;  Herbert  v.  Berrier,  81  Ind.  1;  St.   57.     But  in  Duffield  v.  Morris, 

Bower    v.    Bower,     142    Ind.     194;  2   Harr.    (Del.)    375,   a  charge   that 

Wallis  V.  Luhring,  134  Ind.  447.  "a  sound  mind  is  a  mind  wholly  free 

"It  is  not  to  be  denied  that  a  per-  from  delusion"  was  given. 
son  may  be  possessed  of  delusions,  64  xieman   v.    Schnitker,    181    111. 

and    yet    be    capable    of    making    a  400. 

will."      Burkhart   v.    Gladdish,    123  65  Young  v.  Miller,  145  Ind.  652; 

Ind.  337.  Blough  v.  Parry,  144  Ind.  463. 


LAW    OF    WILLS.  HI 


them  is  possible.  It  is  not  correct  to  say  that  either  requires 
a  greater  degree  of  capacity  than  the  other.  Criminal  capac- 
ity involves  primarily  the  ability  to  distinguish  right  from 
wrong;  while  testamentary  capacity  involves  ability  to  un- 
derstand the  estate  to  be  disposed  of,  the  proper  objects  of 
bounty,  and  the  nature  of  the  testamentary  act.  No  test  can 
reduce  these  to  a  common  standard.  For  instance,  a 
person  may  be  afflicted  with  an  insane  delusion,  which  sug- 
gests a  certain  state  of  facts  to  him.  In  reliance  upon  this 
belief  he  may  perform  an  act,  which  if  committed  by  one  in 
full  possession  of  his  senses,  would  be  a  crime ;  but  which,  by 
reason  of  the  insane  delusion  as  to  the  existence  of  specific 
facts,  is  no  crime.  Yet  this  same  person  may  be  fully  com- 
petent to  make  a  will.  The  insane  delusion  under  which  he 
suffers  may  not  in  any  way  affect  his  knowledge  of  his  estate, 
those  having  natural  claims  upon  him,  and  the  nature  of  the 
testamentary  act  which  he  is  about  to  perform. 

As  a  result  of  these  considerations  very  few  courts  have  at- 
tempted to  compare  criminal  and  testamentary  capacity.  In 
one  case  where  such  attempt  was  made  it  was  said  that  a  de- 
gree of  incapacity  less  than  enough  to  produce  acquittal  of  a 
criminal  charge    would   invalidate   a  will.*^^ 

§96.     Is  contractual  capacity  a  test  of  testamentary  capacity? 

Another  (juestion  of  greater  importance  is  whether  the 
standard  for  testamentary  capacity  is  the  same  as  that  for 
making  contracts  and  engaging  in  business,  or  whether  one 
can  be  compared  with  the  other,  so  as  to  say  that  the  one  re- 
quires the  greater  capacity  and  the  other  the  less. 

Some  courts  have  made  the  attempt  to  compare  contractual 
capacity  with  testamentary  capacity.  The  result  has  been  very 
unsatisfactory.  We  can  find  many  opinions  to  the  effect  that 
testamentary  capacity  requires  a  higher  degree  of  mental  power 
than  contractual  capacity  ;^^   many   in  which  it  is  said  that 

66  McTaggart  V.  Thompson,  14  Pa.  L.  D.  64;  Chandler  v.  Barrett,  21 
St.  149.  La.     Ann.     58;     citing     Aubert     v. 

67  Boughton  V.  Knight,  L.  R.  3  P.       Aubert,  6  La.  Ann.  lOG. 


112  LAW    OF    WILLS. 

testamentary  capacity  requires  a  lower  degree  of  mental  capac- 
ity than  contractual  capacity  f^  aud  some  in  which  it  has  been 
said  that  testamentary  capacity  and  contractual  capacity  re- 
quire the  same  degree  of  mental  capacity.^^ 

This  divergence  of  judicial  opinion  is,  of  itself,  enough  to 
suggest  the  view  that  is  undoubtedly  the  true  one,  and  that 
now  obtains  by  the  weight  of  authority.  This  view  is  that 
testamentary  capacity  and  contractual  capacity  are  so  different 
in  their  nature  that  it  is  impossible  to  use  one  as  a  test  for 
measuring  the  other,  or  to  say  that  the  existence  of  one  either 
proves  or  disproves  the  other's  existence  conclusively.'^ 

Thus,  it  is  possible  for  one  to  lack  contractual  capacity  and  to 
be  unable  to  transact  business,  and  yet  to  have  sufficient  testa- 
mentary capacity."^^  On  the  other  hand,  it  is  possible  for  one  to 
possess  sufficient  contractual  capacity,  and  yet  to  lack  testa- 
mentary capacity.'^^  However,  one  who  has  contractual  capac- 
ity  pynma  facie,  possesses  testamentary  capacity." 

The  courts,  however,  have  not  been  unanimous  in  holding 
that  mental  capacity  to  make  a  valid  contract  can  not  be  com- 
pared with  mental  capacity  to  make  a  will.  Thus  in  Missouri, 
while  the  court  once  decided  that  a  person  may  have  mental 
capacity  to  make   a   will   who  can  not  transact   'complicated 

68Brinkman     v.     Rueggesick,     71  7i  Turner's  Appeal,  72  Conn.  305 ; 

Mo.  553;  83  Mo.  175;  Thompson  v.  Greene  v.  Greene,  145  111.  264;  Sin- 

Kyner,  65  Pa.  St.  368;   Converse  v.  net  v.  Bowman,   151   111.   146;   Tay- 

Converse,  21  Vt.  168;  Kerr  v.  Luns-  lor  v.  Cox,  153  111.  220;  Petefish  v. 

ford.   31    ^Y.    Va.   659.  Becker,   176  111.  448;   Linkmeyer  v. 

And  where  the  court  gave  a  cor-  Brandt,  107  lo.  750;  Wood  v.  Lane, 

rect  statement  of  what  testamentary  102   Ga.   199;    Thompson  v.   KATier, 

capacity   was,   in   law,   it   was   held  65  Pa.  St.  368. 

not  to  be  error  to  add  that  it  re-  72  American      Bible      Society      v. 

quired   less   mental   power   to  make  Price,  115  111.  623. 

a  will  than   it  dfd  to  make  a  con-  ''^  In   re   Wax's    Estate,    106    Cal. 

tract.     Gable  v  Rauch,   50   S.   Car.  343;    Entwistle   v.   Meikle,    180   111. 

95.  9;  Harp  v.  Parr,  168  111.  459;   Sim 

69  Coleman  v.  Robertson,   17   Ala.  v.    Russell,    90    lo.    656;    Morris    v. 
84.  Morton's   Ex'rs.  —  Ky.  — ;    20   S. 

70  Turner's  Appeal,  72  Conn.  305  ;  W.   287. 
Brown    v.    Mitchell,    88    Tex.    350; 

Segur's  Will    (Vt.)    ( 1899) ,  44  Atl. 
342. 


LAW    OF    WILLS. 


113 


business,'  '^  in  a  later  case  it  was  held  proper  to  instruct 
tke  jurj  that  a  person  possessed  testamentary  capacity  if  he 
had  a  "disposing  mind,  that  is  to  say,  that  he  had  sufficient 
understanding  to  transact  his  ordinary  business  affairs,  and  un- 
derstood what  disposition  he  was  making  of  his  property,  and 
to  whom  he  was  giving  it,"  although  the  charge  "did  not  repeat 
the  formula  so  often  adopted" ;  namely,  the  definition  of  tes- 
tamentary capacity  given  in  the  following  section.'^^ 

In  Indiana  a  similar  charge  was  approved."^ ^  In  Illinois 
an  earlier  case  to  the  same  effect  has  been  repeatedly  over- 
ruled; and  the  proposition  is  now  firmly  established  that  the 
capacity  for  making  a  will  is  not  necessarily  the  same  as 
that  for  engaging  in  the  ordinary  business  of  lifeJ"^ 

While  the  courts  quite  generally  hold  that  testamentary  and 
contractual  capacity  are  in  their  nature  so  different  that  they 
can  not  be  compared,  yet  it  has  been  held  that  where  the  trial 
court  gave  a  correct  definition  of  testamentary  capacity  sub- 
stantially as  given  in  the  following  section,  and  then  added  that 


74Maddox  v.  Maddox,  114  Mo.  35. 
75  Farmer  v.  Farmer,  129  Mo. 
530,  citing  Myers  v.  Hauger,  98 
Mo.  433;  Benoist' v.  Murrin,  58  Mo. 
307  ;  Jackson  v.  Hardin,  83  Mo.  175; 
Brinkman  v.  Kueggesick,  71  Mo. 
553;  so  Riley  v.  Sherwood,  144  Mo. 
354.  But  in  Von  de  Veld  v.  Judy, 
143  Mo.  348,  evidence  that  testator 
was  "not  competent  to  do  business" 
was  held  not  to  be  such  evidence 
of  incapacity  to  make  a  will  as 
would  justify  the  court  in  submit- 
ting the  question   to  the  jury. 

7G  Whiteman  v.  Whiteman,  152 
Ind.  263;  Bower  v.  Bower,  146  Ind. 
393;  s.  c.  142  Ind.  194,  citing  (in 
146  Ind.  393)  Todd  v.  Fenton,  66 
Ind.  25;  58  Ind.  5.38;  Durham  v. 
Smith,  120  Ind.  463;  Burkhart  v. 
Gladish,  123  Ind.  337;  Harrison  v. 
Bishop,  131  Ind.  161. 

In  Connecticut  it  is  held  proper 
to  show  whether  testator  could  man- 
age ordinary  business  affairs  or  not. 


Turner's  Appeal,  72  Conn.  305  (but 
such  ability  is  not  held  in  this  case 
to  determine  testamentary  capa- 
city). 

77  The  case  of  Keithley  v.  Staf- 
ford, 126  111.  507,  though  apparently 
followed  in  Francis  v.  Wilkinson, 
144  111.  370,  has  been  overruled  in 
Craig  v.  Southard,  148  111.  37; 
Greene  v.  Greene,  145  111.  264 ;  Tay- 
lor V.  Cox,  153  111.  220;  Petefish  v. 
Becker,  176  111.  448 ;  Prather  v.  Mc- 
Clelland. 76  Tex.  574. 

"Capacity  to  transact  ordinary 
business,  and  to  know  and  under- 
stand the  business  in  which  one  is 
engaged  at  the  time  of  making  the 
will,  are  evidence  of  testamentary 
capacity,  unless  the  testator  was  at 
that  time  afflicted  with  some  mor- 
bid delusion  which  affected  his  ac- 
tion." Orchardson  v.  Cofield,  171 
111.  14,  citing  and  following  Amer- 
ican Bible  Society  v.  Price,  115 
111.  023. 


114 


LAW     OF     WILLS. 


it  took  less  capacity  for  a  will  than  for  a  contract,  this  charge, 
though  strictly  speaking  error,  was  not  so  prejudicial  to  the 
party  complaining  as  to  be  reversible  error.'' ^ 

In  some  jurisdictions  a  statutory  definition  of  testamentary 
capacity  is  "of  sound  and  disposing  mind  and  memory  and 
capable  of  making  a  valid  deed  or  contract."  ''^  Such  statute, 
of  course,  supersedes  the  definitions  of  sound  mind  evolved  by 
the  courts. 

§97.     Test  of  testamentary  capacity  now  adopted. 

The  real  test  of  capacity  has  finally  been  agreed  upon  by  the 
great  weight  of  authority,  as  follows: 

The  testator  must  have  strength  and  clearness  of  mind  and 
memory  sufficient  to  know  in  general,  without  prompting,  the 
nature  and  extent  of  the  property  of  which  he  is  about  to  dis- 
pose, the  nature  of  the  act  which  he  is  about  to  perform,  and 
the  names  and  identity  of  the  persons  who  are  the  proper  ob- 
jects of  his  bounty,  and  his  relation  towards  them.^*^ 

Greater  capacity  than  this  the  law  does  not  demand ;  less  than 
this  is  insufficient;  and  in  each  case  it  is  a  question  of  fact 


78  Gable  v.  Rauch,  50  S.  Car.  95. 

79  Connelly  v.  Beal,  77  Md.  116; 
Barbour  v.  Moore,  4  App.  D.  C. 
535. 

80  Campbell  v.  Carnahan,  —  Ark. 
— ;  13  S.  W.  1098;  Thompson  v.  Ish, 
99  Mo.  160;  Lee's  Will,  46  N.  J.  Eq. 
193;  Durham  v.  Smith,  120  Ind. 
463;  Spratt  v.  Spratt,  76  Mich.  384; 
Prather  v.  McClelland,  76  Tex.  574; 
Hudson  V.  Hughan,  56  Kan.  152; 
Lodge's  Will,  2  Hous.  (Del.)  418; 
Hampton  v.  Westcott,  49  N.  J.  Eq. 
522:  Martin  v.  Thayer,  37  W.  Va. 
38;  Couch  v.  Gentry,  113  Mo.  248; 
Schmidt  v.  Schmidt,  47  Minn.  451 ; 
Franke  v.  Shipley,  22  Ore.  104; 
Bannister  v.  Jackson,  46  N.  J.  Eq. 
593;  Clifton  v.  Clifton,  47  N.  J.  Eq. 
227;   Peninsular  Trust  Company  v. 


Barker,  116  Mich.  333;  O'Brien  v. 
Spalding,  102  Ga.  490;  Smith  v. 
Henline,  174  111.  184;  Entwistle  v. 
Meikle,  180  111.  9;  Young  v.  Miller, 
145  Ind.  652;  Roller  v.  Kling,  150 
Ind.  159;  Cash  v.  Lust,  142  Mo. 
630;  Claffey  v.  Ledwith,  56  N.  J. 
Eq.  333;  King  v.  King,  —  Ky.  — 
(no  off.  rep.)  ;  42  S.  W.  347;  Howat 
V.  Howat,  —  Ky.  — ,  ( no  off.  rep. )  ; 
41  S.  W.  771;  Shreiner's  Appeal, 
178  Pa.  St.  57;  Hall  v.  Perry,  87 
Me.  569;  Hudson  v.  Hughan,  56 
Kan.  152;  Westcott  v.  Sheppard, 
51  X.  J.  Eq.  315:  Baptist  v.  Bap- 
tist, 23  Can.  S.  C.  37;  Mendenhal) 
V.  Tungate,  95  Ky.  208;  Loughney 
V.  Loughney,  87  Wis.  92;  Chappell 
V.  Trent,  90  Va.  849:  Gorkow's 
Estate,  20  Wash.  563;  85  Wis.  162. 


LAW     OF     WILLS. 


115 


or  of  mixed  law  and  fact  whether  the  testator  possesses  the 
requisite  capacitj.^i  ^Vhile  not  necessary,  it  is  perfectly 
proper  to  qualify  such  a  rule  by  adding  that  an  insane  delu- 
sion directly  affecting  the  will  may  destroy  testamentary  ca- 
pacity.*^ 

In  some  jurisdictions  a  rule  to  the  effect  that  mental 
capacity  consists  in  having  a  mind  sound  enough  to  know  and 
understand  the  business  in  which  he  was  engaged,  in  making 
the  will,  is  approved.«2     This  is  practically  the  same  rule  as 


81  Coleman  v.  Robertson,   17   Ala. 
84 ;  Burney  v.  Torrey,  100  Ala.  157 ; 
Tobin  V.  Jenkins,  29  Ark.  151 ;   St. 
Leger's  Appeal,  34  Conn.  434 ;  Chan- 
dler V.  Ferris,  1  Harr.    (Del.)    454; 
Stancell  v.  Kenan,  33  Ga.  56 ;  Jones 
V.  Grogan,  98  Ga.  552;    Nicewander 
V.   Nicewander,   151    111.    156;      Mc- 
Common  v.  McCommon,  151  111.  428; 
Roller  V.  Kling,  150  Ind.  159 ;  Hud- 
son V.  Hughan,  56  Kan.  152;  New- 
comb's  Exr.  V.  Newcomb,  96  Ky.l20; 
Howat   V.   Howat's   Exr.   Ky.    1898, 
41  S.  W.  771;    King  v.  King,  42  S. 
W.  347;    Wise  v.  Foote,  81  Ky.  10; 
Whitney    v.    Twombly,    136    Mass. 
145;  Higgins  v.  Carlton,  28  Md.ll5; 
Moriarity   v.    Moriarity,    108   Mich. 
249;    Peninsular   Trust  Co.  v.   Bar- 
ker,   Mich.    1898,    74    N.    W.    508; 
Cash  V.  Lust,  142  Mo.  630;   Hamp- 
ton V.  Westcott,  49  N.  J.  Eq.  522; 
Rennet  v.  Bennet,  50  N.  J.  Eq.  439 ; 
Chaflfey   v.   Ledwith,    56   N.    J.   Eq. 
333;   Lawrence  v.  Steel,  66  N.  Car. 
584;    Delafield  v.  Parish,   25   N.   Y. 
9;  Van  Guysling  v.  Van  Kurew,  35 
N.  Y.  70;    Hubbard  v.   Hubbard,   7 
Oregon,  42;   Chrisman  v.  Chrisman, 
16   Oregon,   127 ;    Keebler  v.   Shute, 
183  Pa.   St.  283;   Tomkins  v.  Tom- 
kins,  1  Bailey  (S.  Car.),  92;  Ford  v. 
Ford,  7  Hump.  (Tenn.),  92;  Prather 
V.  McClelland,  76  Tex.  574 :  Greer  v. 
Greers,  9  Gratt.   (Va.)   330:  Martin 
V.  Thayer,  37  W.  Va.  38  ;  Holden  v. 
Meadows,  31  Wis.  284 ;  In  re  Farns- 
worth's  Will,  62  Wis.  474. 


"A  man  of  sound  mind  and  dis- 
posing memory  is  one  who  has  a 
full  and  intelligent  knowledge  of  the 
act  he  is  engaged  in,  a  full  knowl- 
edge of  the  property  he  possesses,  an 
intelligent  perception  and  under- 
standing of  the  disposition  he  de- 
sires to  make  of  it,  and  of  the  per- 
sons and  objects  he  desires  shall  be 
the  recipients  of  his  bounty.  It  is 
not  necessary  that  he  should  collect 
these  in  one  review.  If  he  under- 
stands in  detail  what  he  is  about 
and  chooses  with  understanding  and 
reason  between  one  disposition  and 
another,  it  is  sufficient  for  making 
a  will."  Wilson  v.  Mitchell,  101  Pa. 
St.  495;  Miller  v.  Oestrich,  157 
Pa.  St.  264;  Hoopes'  Estate,  174 
Pa.  St.  373. 

82  Nicewander  v.  Nicewander,  151 
111.  156. 

83  Sturdevant's  Appeal,  71  Conn. 
392;  Steele  v.  Helm,  2  Marv.  (Del.) 
237. 

"The  jury  were  told  that  it  was 
sufficient  if  the  mind  and  memory 
of  tlie  testatrix  were  sound  enough 
to  enable  her  to  know  and  under- 
stand the  business  in  which  she  was 
engaged  at  the  time  when  she  ex- 
ecuted the  paper  in  question.  This 
is  the  fundamental  test  and  it  was 
stated  in  proper  form."  Sturdevant's 
Appeal,  71  Conn.  392,  citing  Kim- 
berly's  Appeal,   68   Conn.  428. 


116  LAW    OF    WILLS. 

tliat  given  in  the  earlier  part  of  this  section,  though  pnt  in 
simpler  form. 

Accordingly,  it  is  error  to  charge  that  "it  is  not  nec- 
essary that  one  should  know  the  number  and  condition  of 
his  relations,  or  their  claim  on  his  bounty,  or  that  he  should, 
know  or  understand  the  reason  for  giving  or  withholding  hisj 
bounty  to  or  from  any  relative,"  ^'^  as  this  understates  the 
degree  of  capacity  required  by  law.  On  the  other  hand,  it  ia 
error  to  define  a  "person  of  sound  mind,  with  reference  to 
testamentary  matters,  as  one  who  is  capable  of  recalling  his 
property;  its  amount,  condition  and  situation;  of  estimating 
it  and  dividing  it;  of  comprehending  the  scope  and  provisions 
of  the  will,  of  recalling  all  persons  who  reasonably  come  with- 
in the  range  of  the  bounty  of  testator,  and  all  he  had  done  for 
each  of  them."  This  overstates  the  capacity  required,*  and 
a  charge  that  testamentary  capacity  is  absent,  if  testator  does 
not  have  an  'intelligent  knowledge'  of  his  conduct  and  acts,  and 
an  'intelligent  perception'  of  what  provision  he  was  making 
in  his  will,  requires  too  high  a  standard  of  testamentary 
capacity.^^ 

A  charge  that  capacity  to  make  a  Avill  required  that  testator 
must  possess  sufiicient  mind  to  know  and  understand  what  he 
is  doing,  and  sufficient  mental  capacity  to  know  and  under- 
stand the  extent  of  his  estate,  and  the  persons  who  would  nat- 
urally be  the  objects  of  his  bounty,  and  that  testator  be  able 
to  keep  these  in  mind  long  enough  to  form  a  rational  judgment 
in  regard  to  them  was  approved.^ ^ 

This  does  not,  of  course,  mean  that  testator  must  be  able  to 
understand  the  meaning  of  all  the  technical  legal  terms  which 
are  employed  by  counsel  in  drafting  testator's  will,  under  his 
general  instructions.  It  is  sufficient  if  testator  understands 
the  legal  effect  and  intent  of  the  instrument  as  a  whole,  and  if 

84  Moriarity     v.     Moriarity,     108  Newell,  62  111.  196 ;  Yoe  v.  McCord, 

Mich.  249,  distinguishing  Spratt  v.  74  111.  33. 

Spratt,  76  Mich.  395.  ss  Burney  v.  Torrey,  100  Ala.  157. 

*  Couch  V.  Gentry,  113  Mo.  248;  86  Blough  v.  Parry,  144  Ind.  463. 
on    the    same    point    are    Trish    v. 


LAW    OF    WILLS.  117 

the  instrument  is  so  dra^vn  as  to  express  testator's  intent;^''' 
nor  that  he  shoiikl  be  free  from  all  error,  and  infallible  as  to 
the  actual  relationship  of  the  different  natural  objects  of  his 
bounty.^^ 

In  some  jurisdictions  especial  stress  is  laid  upon  the  ne- 
cessity of  testator's  having  capacity  to  entertain  a  ^fixed  ra- 
tional plan'  of  disposing  of  his  estate.**^ 

§98.     Degree  of  memory  requisite, — Effect  of  size  of  estate. 

This  rule  for  testamentary  capacity  does  not  require  a  per- 
fect memory.^*^ 

A  testator  may  forget  the  existence  of  part  of  his  estate, 
or  of  some  one  who  has  natural  claims  upon  him,  and  yet 
make  a  valid  will.'^^  What  is  required  is  merely  that  the 
testator  have  such  mind  as  is  able  to  remember  the  necessary 
facts,  not  that  he  shall  actually  remember  them  all.*^^ 

Accordingly,  it  is  error  to  charge  that  the  capacity  of  tes- 
tatrix is  to  be  determined  by  finding  "whether  or  not  .  .  .  she 
knew  ...  the  nature  and  extent  of  her  property" ;  as  this  re- 
quires actual  knowledge  at  the  time  and  not  capacity  of  re- 
membering what  she  has  once  known.^^ 

The  effect  of  a  will  made  under  mistake  of  fact  is  here- 
after discussed.  It  is  not  a  question  of  capacity  and  there- 
fore is  not  treated  of  here.* 

It  is  generally  held  that  testator  is  not  required  to  be  able 
to  keep  the  whole  of  his  estate,  and  his  duties  towards  those 
surviving  him  in  mind  at  once.     It  is  sufficient  if  he  can  re- 

87  O'Brien    v.    Spalding,    102  Ga.       492;   In  re  Doughlass's  Estate,   1G2 
^90.  Pa.   St.   567;    Shremer   v.   Shreiner, 

88  Smith  V.  Smith,   48   N.  J.  Eq.       178  Pa.  St.  57;  Montague  v.  Allen, 
566.  78  Va.  592. 

89Newcomb  v.   Newcomb,   96  Ky.  si  Hall    v.    Perry,    87    Me.    569; 

^20.  Livingstone's  Will   (N.  J.  Eq.)   1897, 

90  Henry   v.    Hall,    106    Ala.    84;  37  Atl.  770;   Knauss's  Appeal,  114 

Bice  V.  Hall,    120   111.   597;    Taylor  Pa.  St.  10. 

V.  Pegram,  151  111.  106;  Whiteman  92  Roller  v.  Kling,  150  Ind.  159. 

V.  Whiteman,  152  Ind.  263;  McFad-  93  Brown   v.   Mitchell,   75   Tex.   9, 

in  V.  Catron,  138  Mo.  197;  120  Mo.  *  See  Sees,  118-121. 
252;    Sharp's   Appeal,    134    Pa.    St. 


118  LAW    OF    WJLLS. 

call  them  in  detail.^^  Yet  he  must  be  able  to  keep  these  facts 
in  mind  long  enough  to  understand  their  relation  to  each 
other,  and  to  form  a  rational  judgment  concerning  them.^^^ 
There  is  some  confusion,  in  judicial  decision,  as  to  the  effect 
of  the  size  and  complexity  of  the  estate  upon  the  question  of 
testamentary  capacity.  In  Illinois  it  is  laid  down  that  "the 
capacity  to  comprehend  a  few  simple  details  may  in  one  case 
suffice  to  enable  the  party  to  intelligently  dispose  of  his  prop- 
erty by  contract  or  will,  while  in  another  case  if  the  estate  be 
large,  requiring  the  remembrance  of  many  facts,  and  the  com- 
prehension of  many  details,  and  the  disposition  to  be  made  is 
completed,  the  same  mental  capacity  may  be  wholly  insuffi- 
cient to  the  intelligent  understanding  of  the  business  requisite 
to  the  making  of  a  valid  will."^'^  In  Pennsylvania  and  ISTew 
York,  while  the  decisions  can  not  in  the  nature  of  things  be 
clean-cut  on  this  i^oint,  the  courts  seem  to  hold  that  testa- 
mentary capacity  can  not  vary  according  to  the  size  of  the 
estate  or  the  complexity  of  the  will.^''^ 

§99.     Classes  of  those  mentally  incapacited. — General  discussion. 

The  test  of  testamentary  capacity  already  given  is  clear  and 
simple.  Its  application  to  the  various  forms  of  departure 
from  the  normal  type  is  very  difficult,  owing  to  disputes  among 
scientists  as  to  characteristics  of  such  forms  of  departure,  and 
to  the  identification  of  the  case  in  dispute,  with  any  of  the 
recognized  forms.  While  judicial  decisions  still  seem  to  be 
occasionally  in  conflict  upon  fundamental  questions  of  testa- 
mentary capacity,  the  difference  of  opinion  is,  as  a  rule,  due 
not  to  any  real  clash  upon  rules  of  law,  but  to  complications 
over  questions  of  fact,  which  belong  to  the  domain  of  psy- 

94  McMasters  v.  Blair,  29  Pa.  St.  cited  and  approved  in  Campbell  v. 
298;  Daniel  v.  Daniel,  39  Pa.  St.  Campbell,  130  111.  466;  6  L.  R.  A. 
191,     approved     and     followed     in       167. 

Thompson  v.  Kyner,  65  Pa.  St.  368.  97  Delafield  v.  Parish,  25  N.  Y.  9 ; 

95  Roller  V.  Kling,  150  Ind.  159;  In  re  McCarthy,  55  Hun  (N.  Y.),  7; 
Hall  V.  Perry,  87  Me.  569;  Pitt's  Reichenbach  v.  Rudach,  127  Pa.  St. 
Estate,  85  Wis.  162.  564. 

96Trish    V.    Newell.    62    Til.    196. 


119 

LAW    OF    WILLS. 


chology  and  the  science  of  medicine.  The  extreme  cases  of  in- 
sanity, idiocy,  and  the  like  are  easy  to  recognize.  In  the 
milder  types  of  mental  disorder  the  line  between  the  presence 
and  the  absence  of  testamentary  capacity  is  a  very  difficult 
one  to  locate.  Further,  the  scientist  is  troubled  m  classiiymg 
types  of  mental  unsoundness  by  the  fact  that  many  individ- 
uals present  symptoms  of  two  or  more  types  of  unsoundness 
at  the  same  time.  This  difficulty  is  less  annoying  m  the  law 
of  wills  than  it  is  in  a  scientific  treatise,  as  in  the  former  tl.c 
existence  or  non-existence  of  testamentary  capacity  is  the  only 
point  to  be  determined.  ^ 

A  just  ground  of  objection  to  the  present  state  of  science 
upon  this  topic  is  that  the  very  terms  which  are  used  have, 
as  a  rule,  no  exact  or  uniform  meaning.  In  this  work  the 
meanings  are  given  which  are  commonly  employed  m  text- 
books and  cases,  but  with  the  warning  that  every  scientist 
speaks  a  different  dialect. 

Keeping  in  mind  the  modern  rule  as  to  what  testamentary 
capacity  is,  and  the  elementary  propositions  that  it  is  a  question 
of  law  as  to  what  testamentary  capacity  is,  and  that  it  is  a 
question  of  fact  to  determine  from  the  evidence  whether  tes- 
tamentary capacity  exists  in  the  case  in  dispute,  we  will  pro- 
ceed in  the  discussion  of  the  various  forms  of  departure  from 
the  normal  type  and  the  effect  of  each  form  upon  the  question 
of  testamentary  capacity. 

§100.     Idiocy. 

An  idiot  is  one  who  is  congenitally  deficient  in  intellect- 
one  "who  hath  had  no  understanding  from  his  nativity,  and 
therefore  is  by  law  presumed  never  likely  to  attain  any." 
In  the  technical  use  of  the  term,  "idiot"  is  restricted  to  those 
who  lack  mind  from  birUi.^^  It  is  generally  laid  do^^m  as  an 
absolute  proposition  that  an  idiot  can  not  make  a  will. 
This   doubtless   is   correct.      One  who  possesses   testamentary 

98  Black.   Com.   I,   p.   302.  loo  Browning  v.   ^'^J^\^    ^^'^^ 

99Speedling  v.  Wortli  County.  68      69;  Hovey  v.  Chase,  52  Me.  304. 
To.  152. 


120  LAW    OF    WILLS. 

capacity  has  a  mind  of  too  high,  a  type  to  be  classed  as  aii 
idiot.  There  is  rarely  a  serious  attempt  to  uphold  a  will  made 
by  one  who  is  clearly  an  idiot.  The  doubtful  cases  are  where 
wills  are  made  by  persons  of  a  low  grade  of  intellect,  and  the 
question  for  adjudication  is  whether  such  person  has  sufficient 
mind  and  memory  to  know  and  understand  the  nature  and 
extent  of  his  property,  the  proper  objects  of  his  bounty  and 
the  nature  of  the  testamentary  act.^*^^ 

The  test  laid  down  shows  that  a  high  grade  of  intellect  is 
not  required  to  make  a  will.  It  is  not  even  necessary  that 
testator  should  possess  average  intellect.^  *^^  The  fact  that  tes- 
tator was  competent  to  transact  the  ordinary  business  of  life 
conclusively  establishes  his  capacity  as  far  as  a  charge  of 
idiocy  or  imbecility  is  concerned.^  °^  As  we  have  already  seen, 
this  would  not  be  conclusive  if  the  evidence  disclosed  that  tes- 
tator suffered  from  insane  delusions.  In  this  respect  the  in- 
sane delusion  is  very  different  from  idiocy  and  imbecility. 

§101.     Imbecility. 

An  imbecile  is  one  who  is  mentally  deficient  as  a  result  of 
disease.  He  differs  from  the  idiot  in  not  being  congenitally 
deficient,^ *^"*  and  may  have  once  had  full  mental  capacity. 
In  manv  cases  imbecility  is  the  result  of  insanity  ;^^^  but 
whatever  its  cause,  the  mental  condition  of  the  imbecile  is 
similar  to  that  of  the  idiot,  and  the  same  rules  of  testamen- 

loiBannatyne    v.     Bannatyne,     14  where  idiocy  was  charged,  and  not 

Eng.    L.    &    Eq.    581;    Townsend    v.  insane  delusions).     To  the  same  ef- 

Bogart,  5  Redf.    (N.  Y.)    93.  feet  are:    Bannatyne  v.  Bannatyne, 

10/2  Hoban    v.    Campau,    52    Mich.  14  Eng.  L.  &  Eq.  581 :  Errickson  v. 

346;   St.  Joseph's  Convent  of  Mercy  Fields,  30  X.  J.  Eq.  634. 

V.   Garner,   66  Ark.   623;    53   S.   W.  io4  Speedling  v.  Worth  Co.,  68  lo. 

298;  Howell  v.  Taylor,  50  N.  J.  Eq.  152.     Bouvier's   Law  Diet,     regards 

428 ;    Bennett  v.   Bennett,   50  N.   J.  imbecility  as  either  congenital  or  su- 

Eq.  439.  pervening  in  infancy,  and  apparent- 

103  "One  who  is  competent  to  .  .  .  ly   a   grade   above   idiocy.    "Imbecil- 

contract  is  competent  to  dispose  of  ity." 

property      by      will."        Hoban      v.  los  Delafield   v.   Parish,   25   N.   Y. 

Campau,     52    Mich.     346     (a    case  9. 


LAW    OF    WILLS. 


121 


,  tary  capacity  apply.^*^®  The  only  practical  difficulty  is  in 
determining  whether  a  given  person  is  an  imbecile  or  is  only 
of  a  low  intellect,  consistent  with  testamentary  capacity. 


§102.     Senile  dementia. — Old  age. 

Senile  dementia  is  a  form  of  imbecility  due  rather  to  the 
structural  degeneracy  caused  by  old  age  than  to  any  specific 
disease.^  "'^  In  this  practical  application  the  topic  of  senile 
dementia  is  perhaps  the  most  difficult  among  the  many  difficult 
ones  of  mental  capacity;  not  by  reason  of  any  serious  doubt 
as  to  the  law  of  the  subject,  but  because  of  the  difficult  ques- 
tions of  fact  presented  in  such  cases. 

The  courts  use  the  rule  already  given  as  the  test  for  testa- 
mentary capacity  in  cases  of  alleged  senile  dementia.  "Were 
his  mind  and  memory  sufficiently  sound  to  enable  him  to 
know  and  understand  the  business  in  which  he  was  engaged 
at. the  time  that  he  executed  the  will."  If  testator  does  not 
possess  mental  capacity  of  this  degree  he  can  not  make  a  will, 
even  if  he  wrote  it  out  himself,  and  has  carried  on  business 
transactions  with  apparent  ability.^  °^  Accordingly  it  is  well 
established  that  old  age  alone  will  not  deprive  the  testator  of 
testamentary  capacity.*   Wills  of  the  aged  have  been  sustained 

106  Smith  V.  Smith,  75  Ga.  477;  ell,  101  Pa.  St.  495;  Hoope's  Es- 
Primmer   v.    Primmer,    75    lo.    415:       tate,  174  Pa.  St.  373. 

Hudson    V.    Hughan,    56    Kan.    152;  io9  Bever  v.  Spangler,  93  lo.  576; 

Ayres  v.  Ayres,  43  N.  J.   Eq.  565 ;  *  Campbell  v.   Carnahan,  —  Ark. 

Rothrock     v.     Rothrock,     22     Oreg.  —;  13  S.  W.  1098 ;  O'Connor  v.  Mad- 

551.  ison,  98  Mich.  183;   Norton  v.  Pax- 

107  Boiivier  "Dementia,"  1  Redf.  ton,  110  Mo.  450;  Clifton  v.  Clifton, 
Wills,  94;  Schouler  on  Wills,  Sec.  47  N.  J.  Eq.  227;  Waddington  v. 
131.  Buzby,    45    N.    J.    Eq.    173;    Blair's 

108  Bever  v.  Spangler,  93  lo.  576;  Will,  16  N.  Y.  Supp.  874;  Nafle's  Es- 
so,  Greene  v.  Greene,  145  111.  264;  tate,  134  Pa.  St.  492;  In  re  Boyer's 
Gait  V.  Provan,  108  lo.  561;  79  Estate,  166  Pa.  St.  630;  In  re  Loe- 
N.  W.  357;  Hudson  v.  Hughan,  56  sor's  Estate,  167  Pa.  St.  498;  Mc- 
Kan.  152;  Minor  v.  Thomas,  12  Intire  v.  Wright,  12  Rich.  (S.  Car.) , 
B.  Mon.  (Ky.)  106 ;  Harvey  v.  Sul-  232;  Trezevant  v.  Rains,  85  Tex. 
lens,  46  Mo.  147 ;  Horn  v.  Pullman,  329 ;  Sehr  v.  Lindemann,  Mo. 
72  N.   Y.   269;    Mendenhall   v.   Tun-  (1899),  54  S.  W.  537. 

gate,  95  Ky.  208;  Wilson  v.  Mitch- 


122  LAW    OF    WILLS. 

where  executed  when  testator  was  over  a  hundred  years  old,^^^ 
and  where  testator  was  over  ninety/ ^^  and  cases  where  testa- 
tor was  over  eighty  are  common.^  ^^ 

Complications  of  growing  eccentricity,  weakness,  slight  fail- 
ure of  memory  and  the  like,  even  when  added  to  extreme  old 
age,  do  not  of  themselves  destroy  testamentary  capacity."^ 

The  fact  that  testator's  mind  was  not  as  strong  at  the  time 
of  making  the  will  as  it  was  before  does  not  prevent  him  from 
possessing  testamentary  capacity.  The  question  is  not  if  his 
mind  was  at  its  best  when  he  made  the  will^  but  if  it  con- 
formed to  the  legal  standard.^  ^^  So  the  fact  that  testator's 
feelings  towards  his  children  and  other  natural  objects  of  his 
bounty  change  as  he  grows  older  does  not  establish  a  lack  of 
testamentary  capacity.^  ^^  Nor  will  the  fact  that  he  asks  fool- 
ish questions  and  often  repeats  them  after  they  are  answered 
establish  a  lack  of  testamentary  capacity.^  ^^ 


§103.     Insanity. 

Insanity  is  the  prolonged  departure,  without  any  adequate 
cause,  from  the  states  of  feeling  and  modes  of  thinking  usual 

110  Wilson    V.    Mitchell,    101    Pa.  66;   O'Connor  v.  Madison,  98  Mich. 
St.   495.  183;    Riley    v.    Sherwood,    144    Mo. 

111  Maverick  V.  Reynolds,  2  Bradf.  354;    Maddox   v.   Maddox,    114   Mo. 
(N.  Y.)   360.  35;   Merrill  v.   Rush,   33  N.  J.   Eq. 

ii2Manogue   v.   Herrell,    13   App.  637;   White  v.   Starr,  47   N.  J.  Eq. 
D.  C.  455;   Reed's  Will,  2  B.  Mon.  244;    In    re    Cline,    24     Ore.     175; 
(Ky.)    79;    Lowe  v.  Williamson,   1  Tow's  Estate,  147  Pa.  St.  264. 
Green's  Ch.  N.  J.  Eq.  82;  McFadin  i"  Taylor   v.   Kelly,   31    Ala.   59; 
V.    Catron,    138    Mo.    197;    120   Mo.  Stancell  v.  Kenan,  33  Ga.  56;  Tay- 
252  ;/n  r«  Eddy,  .32  N.  J.  Eq.  701;  33  lor  v.  Pegram,  151  111.  106;   O'Con- 
N.  J.  Eq.  219;  W^addington  v.  Buz-  nor  v.  Madison,  98  Mich.  183;  Nor- 
by,  45  N.  J.  Eq.  173;  Horn  v.  Pull-  ton   v.    Paxton,    110   Mo.   456;    Von 
man,  72  K  Y.  269;  In  re  Snelling's  de  Veld  v.  Judy,  143  Mo.  348;  West- 
Estate,  136  N.  Y.  515;   Shai-p's  Ap-  cott  v.  Sheppard,  51  N.  J.  Eq.  315; 
peal,    134   Pa.    St.   492;    Fowe's   Es-  Sharp's    Appeal,    134    Pa.    St.    492; 
tate,   147   Pa.   St.  264;    Boyer's  Es-  Flansburgh's  Will,  82  Hun,  49. 
tate,  166  Pa.   St.  630;   Loeser's  Es-  us  Riley    v.    Sherwood,    144    Mo. 
tate,  167  Pa.  St.  498;   Silverthorn's  354. 
Will.  68  Wis.  372.  us  White  v.   Starr,   47   N.  J.  Eq, 

113  Wood   V.   Lane,    102   Ga.    199;  244;    Clifton   v.    Clifton,    47    N.    J. 

Holmberg  v.  Phillips,  To.  78  N.  W.  Eq.  227. 


LAW     OF     WILLS.  1^^ 

to  the  individual  in  health.^^^  The  term  insanity  is  sometimes 
used  with  so  broad  a  meaning  as  to  include  all  forms  of  un- 
soundness of  mind,  even  idiocy.  A  more  limited  meaning  ex- 
clud'es  idiocy  and  the  forms  of  imbecility,  even  though  they 
may  result  from  insanity. 

From  the  standpoint  of  the  law  which  attempts  merely  to 
determine  the  mental  capacity  of  the  specific  individual,  this 
confusion  in  definition,  though  annoying,  does  not  present 
great  difficulty  when  its  existence  is  once  recognized.  In  its 
extreme  forms  insanity  so  clearly  destroys  testamentary  ca- 
pacity that  there  is  but  little  litigation  on  the  subject.  In 
doubtful  cases  the  test  of  testamentary  capacity  already  given 
must  be  applied.  If  the  testator  has  mind  and  memory  suf- 
ficient to  comprehend  the  nature  and  extent  of  his  estate,  the 
proper  objects  of  his  bounty  and  the  nature  of  the  testamentary 
act,  he  has  in  law  testamentary  capacity;  otherwise  he  has 
not.118 

In  connection  with  insanity,  however,  two  points  must  be 
discussed  further  in  detail — the  insane  delusion  with  the  spe- 
cial type  of  insanity  known  as  monomania,  and  the  lucid  in- 
terval. 

§104.    Insane  delusion Definition. 

The  insane  delusion  is  "a  permanent  and  most  usual  symp- 
tom of  insanity  ;^^9  or,  as  has  been  said,  is  not  merely  a 
symptom  of  insanity,  but  is  insanity.^  20  while  it  has  been 
held  that  the  term  insane  delusion  is  so  clear  that  no  defini- 
tion is  necessary ,121  the  majority  of  the  courts  prefer  to  define 
it,  and  substantially  agree  upon  the  following  definition: 

"An  insane  delusion  is  a  diseased  condition  of  the  mind  in 
which  persons  believe  things  i^o  exist  which  exist  only,  or  in 
the  degree  they  are  conceived  of  only,  in  their  own  imagina- 

iiT  Bouvier's  Law  Dictionary,  "In  n"  Mill's  Appeal,  44  Conn.  484. 

sanity" ;  Lundway  v.  Croft,  3  Curt.  120  Waring    v.    Waring,    6    Moore 


678 


P.  C.  341 ;    12  Jur.  947. 


lis  Potts    V.    House,    6    Ga.    324;  121  Farmer    v.    Farmer,    129    Mo. 

In  re  Fenton's  Will,  97  To.  192;  In       530. 
re  Hoopes'  Estate,  174  Pa.  St.  373. 


124  LAW     OF     WILLS. 

tions,  with,  a  persuasion  so  firm  and  fixed  that  neither  evidence 
nor  argument  can  convince  them  to  the  contrary."  ^^^ 

Another  definition  involving  the  same  essential  idea  is : 

"A  person  persistently  believing  supposed  facts,  which  have 
no  real  existence,  against  all  evidence  and  probability,  and 
conducting  himself  upon  an  assumption  of  their  existence,  is, 
so  far  as  such  facts  are  concerned,  under  an  insane  delu- 
sion." ^^^ 

An  insane  delusion  is  often  defined  as  "a  false  belief  for 
which  there  is  no  reasonable  foundation,  which  would  be  in- 
credible, under  the  given  circumstances,  to  the  same  person  if 
of  sound  mind,  and  concerning  which  the  mind  of  the  testator 
was  not  open  to  permanent  correction  through  evidence  or  ar- 
gument" ;^^'*  or  as  a  belief  "purely  a  creature  of  the  imagina- 
tion such  as  no  sane  man  could  believe."^ -^  Some  courts  have 
defined  an  insane  delusion  as  a  belief  in  facts  that  no  rational 
person  would  believe.-^^^ 

Definitions  of  this  character,  though  approved  by  eminent 
authority,  are  of  but  little  practical  value.  They  assume  that 
everyone  knows  what  a  sane  man  could  or  could  not  believe, 
and  thus  leave  the  distinction  between  sanity  and  insanity  an 
open  question. 

It  has  been  further  held  that  to  constitute  an  insane  delu- 
sion the  belief  must  have  been  genuine  and  of  a  permanent 
type.^-'^ 


122  Bouvier's  Law  Dictionary,  Ti-  124  Kimberly's    Appeal,    68    Conn. 
tie,    "Delusion."      Dew   v.    Clark,    3  428. 

Add.  Eccl.  79;  Boardman  v.  Wood-  125  Redfield  on  Wills,  67;  Tay- 
man,  47  N.  H.  120;  Middleditch  \.  lor  v.  Trich,  165  Pa.  St.  586;  Hem- 
Williams,  45  N.  J.  Eq.  726;  In  re  ingway's  Estate,  195  Pa.  St.  291. 
White's  Will,  121  N.  Y.  406;  Pot-  126  Duffigld  v.  Robeson,  2  Harr. 
ter  V.  Jones,  20  Oreg.  239;  Robin-  (Del.)  375;  Nicewander  v.  Nice- 
son   V.    Adams,    62    Me.    401.  wander,  151  III.  156;  Orchardson  v. 

123  Haines    v.    Hayden,    95    Mich.  Cofield,  171  111.  14. 

332.  i27Redfield's  Estate,  116  Cal.  637. 


LAW     OF     WiLLS.  125 

§105.     Analysis  of  insane  delusion. — Mistake  of  fact. 

The  insane  delusion  is  characterized  bj  peculiarities  so 
marked  yet  so  difficult  to  define  that  it  has  been  said  by  able 
authority  that  it  is  better  to  determine  the  nature  of  the  de- 
lusion from  the  sanity  or  insanity  of  the  person  entertaining 
it  than  to  determine  his  mental  condition  from  the  nature  of 
his  delusion.^ -^  The  weight  of  authority,  however,  is  that  the 
presence  or  absence  of  sanity  is  to  be  determined  from  the 
nature  of  the  delusion.  In  their  attempts  to  determine  whai 
delusions  are  sane  and  what  are  insane  the  courts  have  agreed 
upon  certain  fundamental  principles  and  upon  the  application 
of  these  principles  in  many  ways.  The  divergence  of  author- 
ity as  usual  is  in  the  reasoning  in  the  opinions  in  the  nature 
of  dicta. 

The  insane  delusion  is  much  more  than  a  mere  delusion  of 
fact.  Many  a  sane  man  suffers  from  mistakes  and  delusions. 
The  fact  that  the  testator,  at  the  time  that  he  made  his  will, 
was  mistaken  in  a  matter  of  fact,  does  not  of  itself  even  tend 
to  show  that  he  was  then  suffering  from  an  insane  delusion.^  ^^ 
It  is  therefore  proper  for  the  court  to  refuse  to  consider  a  delu- 
sion as  a  ground  of  attack  upon  the  validity  of  a  will ;  and  in- 
stead to  limit  the  consideration  of  the  jury  to  the  insane  delu- 
sion.^ ^^  Accordingly  where  a  man  upon  slight  evidence  is  con- 
vinced that  his  wife  is  unchaste  and  that  his  own  children  are  not 
his,  and  on  such  belief  disinherits  them,  such  belief  may  be  a 
delusion,  but  is  not  an  insane  delusion,  and  the  will  is  proof 
against  attack  on  this  ground  ;^^^    and  the  fact  that  a  testator. 


128  Smith  V.  Tebbitt  L.  R.  1  V.  Titus  v.  Gage,  70  Vt.  13;  Martin 
&   r>.   401.  V.   Thayer,    37   W.   Va.    38. 

129  Hall  V.  Hall,  38  Ala.  131:  In  iso  Maynard  v.  Tyler,  168  Mass. 
re  Ruffino's  Estate,  116  Cal.  304;  107,  citing  BroMii  v.  Ward,  53  Md. 
Carpenter    v.    Bailey,    94    Cal.    406;  376. 

Kimberly's    Appeal,    68    Conn.    428  ;  isi  Smith  v.   Smith,  48  X.  J.   Eq. 

Maynard  v.   Tyler,    168   Mass.    107;  566;    Clapp  v.   Fullerton,   34  N.  Y. 

Middlewitch   v.   Williams,   45  N.   J.  190.     So  when  testator  believes  that 

Eq.   726 ;    Smith  v.   Smith,  48  N.  J.  the  son  is  not  only  the  product  of 

Eq.    566;    White's    Will,    121    N.    Y.  adulterous    intercourse,    but     is     a 

406;    In    re    Cline,    24    Oreg.    175;  drunkard.     Kidney's  Will,  33  X.  B. 

9. 


126  LAW     OF     WILLS. 

in  anger  at  his  wife  and  son,  and  by  way  of  retaliation  for 
their  attacks  upon  his  moral  character,  called  his  son  a  bas- 
tard, without  any  evidence  to  suggest  such  a  charge,  was  held 
not  to  show  an  insane  delusion  uj^on  the  subject.-'^-  But  it 
has  been  held  that  "ii  the  testator,  utterly  without  cause  or 
reason  and  without  expressing  distrust  of  the  fidelity  of  his 
wife,  doubted  the  paternity  of  his  son,  and  from  that  cause 
alone  disinherited  him  when  he  was  one  of  the  natural  objects 
of  his  bounty,  and  if  he  was  in  such  condition  of  mind  that  he 
did  not  know  the  actual  objects  of  his  bounty,  and  such  con- 
dition caused  him  to  make  a  will  that  he  otherwise  would  not 
have  made,  then  he  was  not  of  sound  and  disposing  mind  and 
memory."^  ^^ 

Another  form  of  delusion  not  uncommon  exists  where  the 
testator  wrongly  believes  that  those  who  would  naturally  be 
the  objects  of  his  bounty  are  hostile  to  him.  If  this  belief  is 
not  based  on  evidence  and  is  not  removable  by  evidence  it 
amounts  to  an  insane  delusion  ;^^'*  while  if  founded  upon  ev- 
idence, though  slight  and  inconclusive,  it  is  not  an  insane  de- 
lusion.^^^ 

The  insane  delusion  must  consist  at  least  of  a  mistake  of 
fact.  Without  such  mistake  there  may  be  insanity,  imbecility 
and  the  like,  but  there  can  be  no  insane  delusion.  The  word 
"fact,"  as  here  used,  has  a  very  broad  meaning.     It  includes 

132  Dobie  V.  Armstrong,  160  N.  Y.  Ky.  240;  Woodbury  v.  Obear,  7  Gray 

584.      The    same    principle    applies  (Mass.)     467;     American    Seaman's 

where   the  evidence   shows  that  the  Friend  Society  v.  Hopper,  33  N.  Y. 

wife  accused  the  husband  of  commit-  619:    Ballantine    v.    Proudfoot,    62 

ting  adultery  and  of  trying  to  poi-  Wis.    216. 

son  her,  but  does  not  show  that  she  i35  Mosser  v.  Mosser,  32  Ala.  .551 ; 

believed  that  the  charges  were  true.  Carpenter   v.    Bailey,    94    Cal.    406 ; 

If    made   in    anger    as    a   means    of  In  re  Ruffino's  Estate,  116  Cal.  304; 

annoying  her  husband,  they  did  not  Appeal  of  Kimberly,  68  Conn.  428 ; 

show    an    insane    delusion.      Scott's  Hite  v.  Sims,  94  Ind.  333 ;   Shorb  v. 

Estate    (Cal.)    (1900),  60  Pac.  527.  Brubaker,  94  Ind.  165;  Maynard  v. 

i33Petefish    v.    Becker,     176    111.  Tyler,  168  Mass.  107 ;  Salter  v.  Ely, 

448.      For    another    instance   of    in-  56  N".  J.  Eq.  357;   Coit  v.  Patchen, 

sane  delusion  as  to  legitimacy,   see  77    N.    Y.    533;    White's    Will,    121 

Haines  v.  Hayden,  95  Mich.   332.  X.  Y.  406 ;  Martin  v.  Thayer,  37  W. 

i34Burkhardt    v.     Gladdish,     123  Va.   38. 
Ind.    337;     Sherley   v.    Sherley,    81 


LAW     OF     WILLS. 


127 


not  merely  actual  occurrences  but  conditions,  natural  laws, 
moral  duties  and  the  like.^^^  Thus,  us  we  have  already  seen, 
an  arbitrary  belief  that  a  certain  child  was  not  his  own  may 
amount  to  an  insane  delusion,^ ^'^  and  a  belief  that  testator's 
body  was  to  be  preserved  forever  was  held  an  insane  delu- 
sion.^ ^^  A  belief  that  no  woman  should  be  virtuous  was  held 
to  be  an  insane  delusion  where  it  caused  testator  to  disinherit 
his  daughter,^  ^^  and  an  arbitrary  dislike  for,  or  repulsion  to- 
ward, testator's  children  or  near  relatives  may  be  so  extreme 
as  to  amount  to  an  insane  delusion.-' ^*^ 


§106.     Analysis   of  insane   delusion. — Mistake   not   based   upon 
evidence. 

In  order  to  be  an  insane  delusion  the  mistake  must  be  one 
which  is  not  based  upon  evidence  ;^^^  or  at  least  without  any 
evidence  from  which  a  sane  man  could  draw  the  conclusion 
which  forms  the  delusion.^'*-  This  excludes  mistakes  based  up- 
on insufficient  or  inadequate  evidence ;  or  evidence  from  which 
most  persons  would  draw  conclusions  very  different  from  those 
drawn  by  the  one  who  entertains  the  delusion ;  for  mistakes  of 
this  sort  are  often  made  by  persons  who  are  perfectly  sane.-'^^ 
This  last  qualification,  as  said  before,  really  begs  the  whole 
question,  for  it  presupposes  a  knowledge  of  what  a  sane  man 
is  and  what  he  believes.  Thus  dislike  of  testator's  children  be- 
cause they  had  appeared  against  testator  in  a  suit  for  divorce 

136  Morse    v.    Scott,    4    Dem.     (N.  540 ;  22  L.  T.  813;  Medill  v.  Snyder, 

Y.)  507;  Joslyn  v.  Sedam,  2  Cinn.  L.  Kan.  58  Pac.  902;    Smith  v.   Smith, 

B.   (Ohio),  147.  48  N.  J.  Eq.  506;   Potter  v.  Jones, 

137  Petefish    v.    Becker,    176    111.  20  Oreg.  239. 

448.  142  i-etefish    v.    Beckea',     176    111. 

138  Morse  V.  Scott,  4  Dem.  (i^T.  Y.)  "  448,  and  cases  cited  in  note  before 
514.  the  last. 

139  Joslyn  V.  Sedam,  2  Cinn.  L.  B.  i"  Hall  v.  Hall,  38  Ala.  131; 
(Ohio)   147.  Middlewitch  v.   Williams,   45  N.  J. 

140  Baker  V.  Lewis,  4  Rawle  (Pa.)  Eq.  726;  White's  Will,  121  N.  Y. 
359.  406;    In   re    Cline,     24     Oreg.    175: 

141  Dew  V.  Clerk,  3  Add.  79;  Potter  v.  Jones,  20  Ore.  239;  12 
Banks  v.  Goodfellow,  L.  R.  5  Q.  B.  L.  R.  A.  161. 


128  L^W    OF    WILLS. 

which  testator's  wife  brought  against  him  and  because  they 
s\Tnpathized  with  her,  while  possibly  unreasonable,  does  not 
constitute  an  insane  delusion.^ ^'^ 

§107.     Analysis  of  insane  delusion. — Mistake  not  removable  by 
evidence. 

A  further  test  of  the  insane  delusion  is  that  it  can  not  be  re- 
moved, or  at  least  permanently  removed,  by  evidence.-^*^  This 
follows  naturally  from  the  fact  that  it  is  not  founded  upon  ev- 
idence ;  but  though  a  mere  corollary,  it  is  in  practice  a  very 
valuable  t^t — possibly  the  most  valuable  of  those  as  yet  sug- 
gested by  the  courts.  A  mistake  made  by  a  sane  person  is 
always  susceptible  of  correction.  When  evidence  clearly  dem- 
onstrates that  a  mistake  exists,  that  of  itself  corrects  such  mis- 
take in  the  mind  of  the  person  who  was  deluded.  Further, 
many  mistakes  made  by  a  person  who  is  actually  insane  may  be 
corrected  in  this  way.  But  the  insane  delusion  can  not  be  thus 
corrected.  I^o  amount  of  evidence  is  capable  of  correcting  the 
mistake  in  the  mind  of  the  person  suffering  from  the  delusion — 
permanently  at  least.-^^^ 

§108.     Effect  of  insane  delusion  on  testamentary  capacity. 

When  an  insane  delusion  is  proved  to  exist,  it  follows  from 
the  definition  already  given  that  the  person  suffering  from  it 
is  insane,  for  the  insane  delusion  is  a  SATnptom  of  insanity  if 
not  insanity  itself.  But  insanity  does  not  always  mean  a  lack 
of  testamentary  capacity.  The  law,  as  we  have  seen,  does  not 
require  perfect  sanity.  Further  inquiry,  therefore,  must  be 
made  to  determine  whether  the  person  suffering  from  the  in- 
sane delusion  possesses  testamentary  capacity  or  not. 

Of  course,  the  nature  of  the  insane  delusion,  together  with 
the  remaining  evidence,  may  clearly  establish  the  fact  that 

14*  7n    re    Cline,  24  Ore.  175.  Gass    v.     Gass,     1     Heiskell,     613; 

145  Bouvier's     Law     Diet.,    "Delu-  Denson   v.   Beazley,   34   Tex.    191. 
sion."     Dew  v.   Clark,    3   Add.    79 ;  i*"  See   Sec.   105   and   cases   there 

Medill  V.  Snyder,  Kan.  58  Pac.  962 ;  cited. 
Eobinson    v.    Adams,    C2    Me.    369 


129 

LAW     OF    WILLS. 


such  person  does  not  conform  to  the  standard  of  testamentary 
capacity  already  set  forth,  and,  consequently,  can  not  make  a 
will.  As  this  Jase  has  already  heen  discussed  under  the  topic 
of  Insanity  it  will  be  omitted  here.^'^  ,.,.      • 

The  class  of  cases  to  be  discussed  are  those  in  which  the  in- 
sane delusion  is  the  only  symptom  of  insanity,  and  is  confined 
to  a  clearly  marked  set  of  subjects.  _ 

This  type  of  insanity  is  often  called  monomania,  or  partial 
insanity.  Monomania  is  defined  as  'insanity  upon  a  partic^ 
.ular  subject  only,  and  with  a  single  delusion  of  the  mmd 
This  definition,  and  the  terms  'monomania'  and  'partial  in- 
sanity' are  all  open  to  the  objection  that  they  imply  the  theory 
of  the  mind  referred  to  as  the  compartment  theory;  namely, 
that  a  person  may  be  insane  upon  one  subject  and  perfectly 
sane  upon  another. 

This  theory  is  now  generally  rejected  by  psychology,  and 
monomania  is  explained  as  a  type  of  insanity  which  is  manifest 
only  upon  certain  subjects,  though  it  undoubtedly  affects  the 
whole  mind.  In  actual  practice,  from  the  standpoint  ol  the 
law,  the  modem  theory  of  the  mind  does  not,  in  specific  cases, 
give  a  different  rule  for  testamentary  capacity  from  the  aban- 
doned compartment  theory. 

In  case  of  a  person  whose  capacity  is  rendered  doubtlui  by 
the  existence  of  an  insane  delusion,  the  rule  is  that,  if  the  de- 
lusion was  not  such  as  to  affect  his  knowledge,  memory  and 
understanding  of  the  extent  and  nature  of  his  estate,  the 
proper  objects  of  his  bounty  and  the  nature  of  the  testamentary 
act,  he  has  capacity  in  law  to  make  a  will.^^«     Thus,  an  insane 

147  See   Sees.   94,   96   and   97.  man   v.   Woodman,   47   N    H.    120 

i.sBouvier's      Law       Dictionary,  Maynard  v.   Tyler     168   Mass.     0 

"Monomania."  Lee  v.   Soudder,   31   N.  J.   E^   63 

i..ln    re    Redfield's    Estate,     116  Potter    v.    Jones     20    Ore.   239      12 

Cal.    637;     Dunham's     Appeal,     27  L.    R.    A.    161;    f  ^^^^  ^    P^"^/' 

Conn.    192;    Wetter   v.   Habersham,  68  Pa.  St.  342;  In  re  Trich  s  Wil  , 

60.  Ga.   193;    Blough  v.  Parry,   144  165  Pa.  St.  586;   Shremer  s  Appeal, 

Ind    463;  Young  v.  Miller,  145  Ind.  178    Pa.    St.    57;    Hemmgway  s   Es- 

65^      Rice   V.    Rice.    50   Mich.    448;  tate,    195    Pa.    St.    291;    Blakley's 

Peninsular  Trust  Co.  v.  Barker,  116  Will,  48  Wis.  294. 
Mich.   333,   74   W.  W.   508;    Board- 


130  LAW     OF    WILLS. 

delusion  as  to  visions  of  a  religions  nature  vouchsafed  a  tes- 
tator does  not  of  itself  destroy  testamentary  capacity.^^" 

Nor  does  a  belief  of  testatrix  that  her  sons  had  defrauded 
her  in  settling  their  father's  estate  affect  the  validity  of  the 
will,  where  it  is  shown  that  she  had  endeavored  after  the  quar- 
rel thus  arising  to  induce  her  sons  to  become  reconciled  to  her ; 
and  that  she  discriminated  against  them  in  her  will  because 
they  would  have  nothing  to  do  with  her.^^^ 

If,  however,  the  insane  delusion  does  affect  the  memory  and 
understanding  of  the  person  who  suffers  therefrom  as  to  the 
nature  and  extent  of  his  estate,  the  proper  objects  of  his  bounty 
and  the  nature  of  the  testamentary  act,  such  person  has  not 
capacity  in  law  to  make  a  will.^^^  Thus,  an  insane  delusion 
that  the  beneficiary  under  the  will  was  Christ  is  sufficient  to 
avoid  the  will  ;^^^  or  an  insane  delusion  that  testator's  daughter 
was  a  member  of  a  house  of  ill  fame;  ^^^  or  that  testator's  chil- 
dren were  not  his  own.^^^ 

§109.     Lucid  interval. 

The  second  point  to  consider  in  dealing  with  insanity  is  the 
so-called  lucid  interval.  The  old  idea  of  the  lucid  interval 
was  that  it  was  a  temporary  restoration  to  perfect  sanity — ''an 
interval  in  which  the  mind,  having  thrown  off  the  disease,  had 
recovered  its  general  habit."  ^^^  In  such  an  interval  a  person 
ordinarily  insane  might  make  a  will. 

There  are  two  serious  objections  to  this  definition. 

150  Williams  v.  Williams,  Ky.  23  iss  Orchardson  v.  Cofield,  171  111. 
S.  W.  789,  no  off.  rep.  14. 

151  Heming^vay's  Estate,  195  Pa.  is*  Rivard  v.  Rivard,  109  Mich. 
St.  291.  98. 

in2Gwin  v.  Gwin  (Idaho),  48  iss  Petefish  v.  Becker,  176  111. 
Pac.  295;  Orchardson  V.  Cofield,  171  448;  Haines  v.  Hayden,  95  Mich- 
Ill.    14;    Whitney  v.   Twombly,    136  332. 

Mass.    145;    Haines   v.    Hayden,    95  iss  Attorney-General  v.   Parnther, 

Mich.    332;    Rivard   v.   Rivard,    109  3   Brown   Ch.   441,   Lord   Thurlow's 

Mich.  98;   Tawney  v.  Long,   76  Pa.  opinion. 
106;  Thomas  v.  Carter,  170  Pa.  St. 
272;    Segur's    Will    (Vt.),    44    Atl. 
342. 


LAW    OF    WILLS.  131 

First.  It  requires  too  high  a  standard  of  testamentary  ca- 
pacity. Perfect  sanity  is  not  requisite  ordinarily  to  constitute 
testamentary  capacity,  and  there  is  no  reason  why  it  should  be 
requisite  in  the  case  of  one  who  has  previously  been  more 
seriously  deranged  than  he  is  when  he  makes  his  will. 

Second.  At  present  science  inclines  to  say  that  a  lucid 
interval  as  above  described  either  never  exists  or  is  extremely 
rare. 

The  modem  definition  of  the  lucid  interval  is  "a  period  in 
which  an  insane  person  is  so  far  free  from  his  disease  that  the 
ordinary  legal  consequences  of  insanity  do  not  apply  to  acts 
done  therein."  ^^'^ 

This  definition  requires  a  less  complete  restoration  of  sanity 
than  the  old  definition ;  does  not  set  up  a  standard  of  capacity 
in  excess  of  that  imposed  upon  other  testators,  and  indicates 
a  mental  condition  which,  according  to  the  teachings  of  science, 
exists  quite  frequently. 

The  law  admits  the  possibility  of  a  lucid  interval  of  this 
nature  i^"^^  therefore  a  change  which  ignores  the  contingency 
that  testator  may  recover  from  an  insane  delusion  is  properly 
refused.^  ^^ 

Whether  the  particular  will  in  question  was  made  during  a 
lucid  interval  is  a  question  of  fact  to  be  determined  from  the 
evidence  adduced.  The  rule  as  to  testamentary  capacity  in 
cases  of  lucid  intervals  is  the  same  as  that  in  other  cases  of 
doubtful  mental  capacity.  If,  at  the  time  of  executing  the 
will,  the  testator  had  sufiicient  mind  and  memory  to  know  the 
nature  and  extent  of  his  property,  the  proper  objects  of  his 
bounty  and  the  nature  of  the  testamentary  act,  he  possesses 
legal  capacity  to  make  a  will ;  ^^^  while  if  testator  has  not  such 
disposing  mind  and  memory  he  can  not  make  a  valid  will,  even 

157  Bouvier's  Law  Dictionary,  leo  Weir's  Will,  9  Dana  (Ky. ) 
"Insanity,"  Lucas  v.  Parsons,  27  434;  Chandler  v.  Barrett,  21  La. 
Ga.  593.  Ann.   58;    Goble  v.   Grant,   3   N.   J. 

158  Potts  V.  House,  6  Ga.  324;  Eq.  629;  Davis's  Will,  91  Hun, 
Manley's  Executor  v.  Staples,  65  209;  Wright,  v.  Lewis,  5  Rich.  (S. 
Vt.  370.  Car.)     212;    Manley's    Executors    v. 

159  Manley's  Executors  v.  Staples,       Staples,  65  Vt.  370. 
65  Vt.  370. 


132  LAW     OF     WILLS. 

if    the    violent    symptoms    of    insanity    have    entirely    disap- 
peared.^ ^^ 

A  text-book  on  law  does  not  furnish  room  for  a  discussion 
of  scientific  theories  of  the  lucid  interval  and  of  the  distinc- 
tions between  the  true  lucid  interval  and  mere  abatement  of 
the  more  violent  symptoms  of  insanity.  For  this,  reference  is 
made  to  the  scientific  treatises  upon  this  subject. 

§110.     Eccentricity. 

To  distinguish  eccentricity  from  forms  of  insanity  is  very 
easy  in  theory  but  not  in  practice.  Eccentricity  is  deviation 
from  the  methods  of  conduct  and  behavior  usual  to  the  great 
mass  of  mankind  similarly  situated.^  *^- 

Every  person  has  slight  peculiarities  of  his  own,  which 
never  cause  any  suspicion  of  his  testamentary  capacity.  It  is 
only  when  they  become  pronounced  by  contrast  with  those 
about  him  that  they  become  known  as  eccentricities,  and  are 
invoked  to  discredit  his  testamentary  capacity.  If  the  eccen- 
tricity is  not  due  to  any  form  of  mental  disorder,  but  to  vanity, 
selfishness  and  the  like,  testator  may  make  a  will.^^^  ISTor  do 
the  facts  that  testator  was  filthy,  miserly  and  penurious  to  an 
extreme  degree  establish  a  lack  of  testamentary  capacity.^*''* 

The  rule  of  law  on  this  subject  is  that  eccentricity  has  of 
itself  no  effect  upon  testamentary  capacity.  The  wills  of  per- 
sons eccentric  to  the  verge  of  insanity  have  accordingly  been 
sustained.^  *^^  So,  where  mere  eccentricity  existed  of  an  ex- 
treme type,  manifesting  itself  in  the  conduct  of  testator  in 
blasphemy,  filthiness,  belief  in  witchcraft,  and  such  other  pe- 
culiarities as  having  the  dogs  eat  at  the  same  table  with  him, 

161  White  V.  Wilson,  13  Ves.  88.  Hutchinson,    152    111.    347;    Bennett 

162  Austen  v.  Graham,  8  Moore,  v.  Hibbert,  88  lo.  154;  Prentiss  v. 
P.  C.  493;  Farnum  v.  Boyd,  56  N.  Bates,  88  Mich.  567;  Fulbright 
J.  Eq.  766.  V.  Perry  Co..  145  Mo.  432;  Farnum 

163  Farnum  v,  Boyd,  56  N.  J.  Eq.  v.  Boyd,  56  N.  J.  Eq.  766;  In  re 
766.  Knight's   Estate,   167    Pa.    St.   453; 

i64Tallman's    Will,    148    Pa.    St.       Lee  v.  Lee,  4  McCord  (S.  Car.)   183; 


286. 

165  Ouachita    Baptist    College,    v.       106. 
Scott,   64   Ark.   349;   Hutchinson  v. 


Mercer    v.    Kelso,    4    Gratt.     (Va.) 


LAW    OF    WILLS.  ^"^ 

it  was  held  that  all  this  was  compatible  with  testamentary 

capacity.^  *^^ 

To  be  carefully  distinguished  from  these  cases  are  those  ot 
insanity,  where  some  of  the  symptoms  are  those  of  eccentric 
and  peculiar  behavior.^  ^^ 

§111.     Spiritualism. 

In  many  recent  cases  the  validity  of  wills  has  been  attacked 
on  the  ground  that  the  testators  have  held  the  belief  known  as 
Spiritualism— that  departed  spirits  hold  communication  with 
the  living  through  various  physical  means.     It  is  difficult  to 
state  any  consistent  reason  why  in  law  such  belief  should  affect 
testamentary  capacity.     It  is,  of  course,  perfectly  possible  that 
a  believer  in  Spiritualism  may  be  insane;   but,  under  the  rules 
already  given  such  belief  is  not,  of  itself,  insanity.     The  belief 
is  not  the  result  of  insane  delusions,  but  is  based  upon  extrinsic 
evidence;    and,  though  such  evidence  might  not  convince  the 
general  run  of  people,  it  is  sufficient  foundation  for  distin- 
guishing a  belief  based  thereon  from  an  insane  delusion.     Ac- 
cordingly the  courts  have  held,  when  such  cases  have  been  pre- 
sented for  adjudication,  that  belief  in  Spiritualism  does  not 
of  itself  constitute  insanity.^  ®^ 

Whether  in  a  given  case  the  advice  of  the  medium,  together 
with  the  belief  in  the  advice  of  spirits  as  to  a  given  disposition 
of  property,  may  not  amount  to  undue  influence  is,  of  course, 

166  Bennett  v.  Hibbert,  88  lo.  154.  Wis.    557.      "Belief   in    spiritualism 

167  See  Sees.  103,  105  and  106.  is    not    proof   of     insanity,     but     if 

168  In  re  Spencer's  Estate,  96  Cal.  through  that  belief  one  is  led  into 
448-  Whipple  V.  Eddy,  161  111.  114;  the  delusion  that  another  is  a  god- 
Adams,  62  Me.  369 ;  Brown  v.  Ward,  a  christ-or  gifted  with  powers  and 
Otto  V.  Doty,  61  lo.  23;  Robinson  v.'  faculties  belonging  only  to  super- 
53  Md  376;  Turner  v.  Rusk,  53  Md.  natural  persons,  the  believer  of  the 
65;  McClary  v.  Stull.  44  Nebr  175;  delusion  is  insane  on  that  subject, 
Middleditch  V.  Williams,  45  N.  J.  and  if  he  is  prompted  to  make  a 
Eq  726;  In  re  Rohe's  Will,  50  N.  Y.  will  by  that  delusion  his  will  can 
S  392;  General  Convention  v.  not  be  sustained."  Orchardson  v. 
Crocker,  7  Ohio  C.  C.  327;   Smith's  Cofield,  171  111.  14. 

Will,  52  Wis.  543;  Chafin's  Will,  32 


134:  LAW    OF    WILLS. 

another  question  to  be  discussed  under  "Undue  Influence."  ^*^^ 
It  has  been  held  also  that  a  belief  in  witchcraft  does  not 
render  one  incapable  of  making  a  will.^^^ 

In  a  recent  Pennsylvania  case  the  testator  believed  in  cure 
by  faith,  and  thought  that  he  ought  to  reject  his  family  if  they 
were  wanting  in  faith.  It  was  held  proper  for  the  trial  court 
to  submit  to  the  jury  the  question  of  whether  this  was  an  insane 
delusion  and  affected  his  will,  adding  that  otherwise  they  must 
hold  the  will  valid,  ''however  absurd,  ridiculous  or  unfounded 
you  may  individually  or  collectively  believe  his  peculiar  views 
on  faith  and  its  effects  to  have  been."  ^^^ 

§112.     Drunkenness  and  the  use  of  drugs. 

The  principles  of  testamentary  capacity  already  explained 
apply  in  cases  where  the  testator  is  affected  by  the  use  of  al- 
cohol or  drugs.  In  such  case  a  person  may  have  the  capacity 
which  the  law  requires  for  making  a  will,  if,  in  spite  of  the 
effect  of  alcohol  or  drugs,  such  person  has  sufficient  mind  and 
memory  to  understand  the  nature  and  extent  of  his  property, 
the  proper  objects  of  his  bounty  and  the  nature  of  the  testa- 
mentary act.^^2  But  if  his  mind  is  so  affected  by  alcohol  or 
drugs  that  it  lacks  these  requisites,  he  has  not  such  capacity.^ ^^ 

As  in  other  cases,  the  question  to  be  determined  is  solely  that 
of  the  capacity  of  the  testator  at  the  time  of  making  his  will. 
The  fact  that  he  was  habitually  intoxicated  or  under  the  influ- 

169  Lyon  V.  Home,  L.  R.  6  Eq.  655  ;  i72  Slinghoff    v.    Bruner,    174    111. 

Thompson  v.   Hawks,   14   Fed.   902;  561 ;  Fluck  v.  Rea,  51  N.  J.  Eq.  639; 

Kimberly's    Appeal,    68    Conn.    428;  51    N.   J.    Eq.    233;    Dieffenbach   v. 

37  L.  R.  A.  261 ;  Orchardson  v.  Co-  Grece,   56   N.   J.    Eq.    365 :    Bannis- 

field,   171   111.   14;   Robinson  v.   Ad-  ter  v.  Jackson,   46   N.   J.   Eq.   593: 

ams,  62  Me.  369;  Baylies  v.  Spauld-  45  N.  J.  Eq.  702 ;  Miller  ^.  Oestrich, 

ing    (Mass.),   1   New  Eng.  914.  157    Pa.    St.    264;    Levin's    Estate, 

iToAddington   v.    Wilson,    5    Ind.  140  Pa.  St.  179;  Key  v.  Bollaway,  7 

137;    Schildnecht  v.  Rompf     (Ky.),  Baxt."   (Tenn.)    575. 

4    S.    W.   235;    Kelly   v.   Miller,    39  i73  Ball  v.  Kane,  1  Penne.    (Del.) 

Miss.    17;    Fulbright   v.    Perry    Co.,  90;  39  Atl.  778:  Peck  v.  Caiy,  27  N. 

145  Mo.  432:  Van  Guysling  v.  Van  Y.   9;    Reichenbach   v.   RndAch,    127 

Knren,  35  X.  Y.  70.  Pa.  St.  564 ;  Miller's  Estate.  1 79  Pa.. 

171  Taylor   v.    Trich,    165   Pa.    St.  St.   645. 
586. 


LAW    OF    WILLS. 


135 


enoe  of  drugs  does  not  render  his  will  invalidj  if  he  had  the 
requisite  understanding  at  the  time  that  he  made  it.^^^  Thus, 
a  chronic  morphine  eater  may  make  a  will  if  not  under  the 
influence  of  the  drug  at  the  execution  of  the  will.^'^^  Even 
where  he  is  under  the  influence  of  brandy  to  a  slight  extent  at 
the  very  time  that  he  makes  his  will  he  may  have  testamentary 
capacity.^ '^^ 

The  same  rule  as  to  testamentary  capacity  applies  where 
the  ravages  of  disease  combine  with  the  effects  of  alcohol  or 
drugs.  A  man  may  be  a  physical  wreck/ ^'''  or  may  suffer  from 
locomotor  ataxia,  combined  with  years  of  heavy  drinking,  and 
still  have  testamentary  capacity.^  ^^ 

§113.     Delirium. 

Delirium  is  a  form  of  mental  aberration  incident  to  diseases 
usually  febrile  in  nature.^  ^^ 

In  the  law  of  wills  delirium  is  treated  as  a  form  of  tempo- 
rary insanity,  and  is  subject  to  the  same  tests.  If  the  effect  of 
the  delirium  is  to  deprive  testator  of  the  ability  to  understand 
the  nature  and  extent  of  his  property,  the  proper  objects  of  his 
bounty  and  the  nature  of  the  act  which  he  is  about  to  per- 
form, he  can  not  make  a  valid  will.^^*^  In  the  law  of  wills  the 
difference  between  delirium  and  insanity  of  the  ordinary  type 
is  as  to  the  presumption  of  continuance.  Delirium  is  not  pre- 
sumed to  continue;    ordinary  insanity  is.^^^ 


174  Wilson's  Estate,  117  Cal.  262 
Johnston's  Estate,  57  Cal.  529 
Lang's  Estate,  65  Cal.  19;  Ball  v 
Kane,  I  Penne.  (Del.)  90;  39  Atl 
778 ;  Camp  v.  Shaw,  52  111.  App 
241 ;  Pierce  v.  Pierce,  38  Mich.  412 
Hennessy  v.  Woulfe,  49  La.  Ann 
1376;  Fluck  v.  Rea,  51  N.  J.  Eq 
233;  Bannister  v.  Jackson,  45  N.  J 
Eq.  702;  Black  v.  Ellis.  3  Hill 
(S.   Car.)    68;    In  re  Gorkow's  Es 


"TGorkow's  Estate,  20  Wash. 
563;  56  Pac.  385. 

178 /n  re  Miller's  Estate,  179  Pa. 
St.   645. 

173  Bouvier's  Law  Diet.,  "Deliri 
um,  febrile."  Owing's  Case,  1  Bland 
(Md.)    370. 

ISO  Staples  v.  Wellington,  58  Me. 
453;  Hix  v.  Whittemore,  4  Met. 
(Mass.)  545;  Clark  v.  Ellis,  9  Oreg. 
128. 


tate,  20  Wash.  563.  isi  See    Chap.    XIX,    Evidence    of 

175  Bush  V.  Lisle,  89  Ky.  393.  Incapacity,  Sec.  384. 

i76Bevelot   v.    Lestrade,    153    111. 

625. 


136  LAW     OF     WILLS. 

It  is,  moreover,  a  matter  of  fact  recognized  by  courts  of  law 
that  the  lucid  interval  is  far  more  common  in  delirium  than  in 
insanity;  in  fact,  in  delirium  the  lucid  interval  is  the  normal 
condition,  which  returns  as  soon  as  the  severity  of  the  disease 
abates.^^^ 

§114.     Delirium  tremens. 

Delirium  tremens  is  "a  form  of  mental  disorder  incident 
to  habits  of  intemperate  drinking."  ^^^  This  form  of  de- 
lirium is  also  treated  in  the  law  of  wills  as  a  form  of  temporary 
insanity,  and  is  subject  to  the  tests  already  given.^^* 

§115.     Persons  under  guardianship. 

Questions  are  occasionally  raised  as  to  the  validity  of  wills 
made  by  persons  under  guardianship.  Such  persons  may,  and 
often  do,  lack  the  mental  capacity  to  make  a  valid  will ;  and, 
of  course,  if  such  ability  is  lacking,  the  adjudication  of  idiocy, 
insanity  or  the  like,  and  the  appointment  of  a  guardian  will  not 
add  to  the  capacity  of  the  person  in  question.  The  question 
here  considered  is  quite  different.  It  is  this :  Can  a  person  who 
has  been  adjudicated  insane  or  idiotic  or  the  like,  and  placed 
under  guardianship  or  in  an  asylum,  make  a  valid  will  if  it  can 
be  shown  that  at  the  date  of  making  such  will  he  possessed  the 
requisite  mental  capacity ;  or  does  the  existence  of  the  guardian- 
ship conclusively  establish  his  incapacity  to  make  a  will  until 
such  guardianship  is  determined  by  a  decree  of  court  ? 

The  courts  have  answered  this  question  by  holding  that  a 
person  under  guardianship  may  make  a  valid  will  if  he  has 
the  testamentary  capacity  which  is  required  by  law  in  other 

is2Brogden    ,v.    Brown,    2    Add.  i §4  Peck    v.    Gary,    27    N.    Y.    9; 

336;   Brown  v.  Riggin,  94  111.  5G0 ;       Edge   v.    Edge,    38    N.    J.    Eq.    211. 
Staples  V.  Wellington,  58  Me.  453.  See  See.  112. 

183  Boiivier's  Law  Diet.  "Delirium 
Tremens." 


LAW    OF    WILLS. 


137 


cases  ^«^  The  effect  of  the  decree  establishing  the  guardianships 

belongs  under  the  subject  of  evidence,  and  will  be  discussed 

there.^^^ 

§116.     Disease,   great  weakness,   and  approaching  death. 

In  cases  where  the  testator  is  very  weak  from  disease  or 
accident,  or  where  he  is  even  at  the  point  of  death,  the  rules 
already  given  apply.  Neither  weakness  nor  approaching  death 
of  themselves  render  the  testator  incompetent  to  make  a  will. 
If  in  spite  of  his  weakness  of  body,  he  has  sufficient  mental 
capacity  to  be  able  to  know  and  understand  the  nature  and 
extent  of  his  property,  the  natural,  proper  objects  of  his  bounty 
and  the  nature  of  the  act  which  he  is  about  to  perform,  he  has 
sufficient  capacity  to  make  a  valid  will.^^^ 

So  where  his  physical  ailments  cause  drowsiness  and  stupor 
he  may  still  possess  understanding  sufficient  to  make  his  will.^"" 
But  if  he  is  so  weak  in  body  that  his  mind  is  not  capable  ^of 
grasping  these  necessary  facts,  he  can  not  make  a  valid  will.^^^ 
Thus  it  is  perfectly  possible  for  one  who  does  not  suffer  from 
any  mental  disease  of  any  kind  to  be  deprived  by  physical 

1  *n  190 

weakness  of  the  power  to  make  a  will. 


185  Roe   V.   Nix,   62   L.   J.   P.   36; 

[1893]    P.   55;    1   R.  472;    68   L.  T. 

26.      In    re    Johnston's    Estate,    57 

Cal.  529;  Lucas  v.  Parsons,  27  Ga. 

593;    Harrison  v.   Bishop,   131   Ind. 

161;    Stevens   v.    Stevens,    127    Ind. 

560;    In   re    Fenton's    Will,    97    lo. 

192;    Linkmeyer   v.   Bandt,    107    To. 

750;     Stone    v.    Damon,     12    Mass. 

488;  Breed  v.  Pratt,  18  Pick. 
(Mass.),  115;  Leonard  v.  Leonard, 
14  Pick.  (Mass.),  280;  Rice  v.  Rice,- 
50  Mich.  448  ;  Brady  v.  McBride,  39 
N.  J.  Eq.  495-;  Wadsworth  v.  Sharp- 
steene,  8  N.  Y.  388;  Hoopes' 
Estate,  174  Pa.  St.  373;  (obiter) 
Hamilton  v.  Hamilton,  10  R.  I. 
538;  Bobinson  v.  Robinson,  39  Vt. 
267;    Slinser's  Will,   72   Wis.   22. 

186  See  Sec.  402. 

187  Ball  V.  Kane,  1  Penne.   (Del.) 


90;  Hall  v.  Hall,  18  Ga.  40;  Beve- 
lot  V.  Lestrade,  153  111.  625;  Hath- 
orn  V.  King,  8  Mass.  371;  Ayres  v. 
Ayres,  43  N.  J.  Eq.  565;  O'Brien 
V.  Dwyer,  45  N.  J.  Eq.  689 ;  James 
V.  Sutton,  36  Neb.  393;  Bain  v. 
Cline,  24  Oreg.  175;  Gorkow's  Es- 
tate, 20  Wash.   563. 

188  McLaughlin  v.  McLellan,  26 
Can.  S.  C.  646. 

189  Copeland  v.  Copeland,  32  Ala. 
512:  Gurley  v.  Park,  135  Ind.  440; 
Manatt  v.  Scott,  106  To.  203 ;  John- 
son v.  Cochrane  (N.  Y.)  (1899) 
54  N.  E.  1092;  Tucker  v.  Sandage, 
85  Va.  546 ;  Walters  v.  Walters,  89 

Va.  849. 

190  Baptist  V.  Baptist,  23  Can. 
Sup.  37;  Manatt  v.  Scott,  106  lo. 
203;  Mitchell  v.  Corpening,  124  N. 
Car.  472 ;  Chapell  v.  Trent,  90  Va. 
840. 


188  LAW     OF     WILLS. 

"Where  the  disease  assumes  the  form  of  some  lesion  of  the 
nervous  system — such,  for  example,  as  is  popularly  classed  as 
paralysis — the  effect  upon  the  mind  is  likely  to  be  more  marked 
than  in  case  of  diseases  affecting  other  parts  of  the  body.  Still, 
neither  paralysis  nor  any  kindred  disease  of  itself  disqualifies 
a  testator  to  make  a  will,^'^^  but  paralysis  may  progress  so  as  to 
destroy  testamentary  capacity,  especially  when  complicated 
with  old  age.^^^ 

§117.     The   deaf,   dumb   and  blind. 

At  the  common  law  such  persons  as  were  bom  deaf,  dumb 
and  blind  were  classed  as  non  compotes;  for,  "as  they  have 
always  wanted  the  common  inlets  of  understanding,"  they  "are 
incapable  of  having  animum  testandi,  and  their  testaments  are 
therefore  void."  ^^'^  Also  those  who  were  born  deaf  and  dumb 
were  always  regarded,  at  the  old  common  law,  as  lacking  ca- 
pacity to  make  a  valid  will.^^^ 

This  theory  is  notoriously  untrue.  Many  persons  who  are 
bom  deaf  and  dumb  are  capable  of  great  intellectual  exertion, 
and  are  as  competent  in  reality  to  make  wills  as  their  more 
fortunate  brethren.  Those  who  are  born  deaf,  dumb  and  blind 
have  far  greater  difficulty  in  communicating  with  the  outside 
world,  as  touch  is  practically  the  only  sense  available  to  them ; 
yet  the  cases  of  Laura  Bridgman,  in  the  early  part  of  the  nine- 
teenth century,  and  Helen  Kellar,  in  the  latter  part,  have  proved 
beyond  doubt  that  those  who  are  deaf,  dumb  and  blind  from 
birth  may  possess  vigorous  and  powerful  minds. 

Accordingly,  the  courts  have  gradually  modified  the  old  com- 
mon law  rule.  The  first  step  was  to  treat  the  rule  that  deaf 
and  dumb  persons  could  not  make  a  will  as  a  rule  of  ptima  facie 
presumption  only,  subject  to  be  rebutted  by  evidence  of  capac- 
ity.^ ^^     The  modern  rule  is  that  a  deaf  and  dumb  person  has, 

isi  Kothrock  v.  Rothrock,  22  Ore.  '93  Bla(*k.  Com.  2,  p.  497. 

551;  30  Pae.  453.  is*  Coke  on  Littleton,  42b;   Yong 

192  Mendenhall  v.  Tungate,  95  Ky.  v.  Sant,  1  Dyer,  55b. 
208;   Rothrock  v  Rothrock,  22  Ore.  iss  Potts    v.    House,    6    Ga.    324; 

551  :  30  Pac.  453.  Perrine's  Case,  41  N.  J.  Eq.  409. 


LAW     OF     WILLS. 


139 


as  a  matter  of  law,  as  much  mental  capacity  to  make  a  will  as 
any  other  person,  and.  that  there  is  no  presumption  of  his  in- 
capacity, whether  he  were  born  deaf  and  dumb  or  subsequently 
became  so.-^°^  And  those  who  are  born  deaf,  dumb  and  blind 
are  not  on  that  account  to  be  considered  at  modern  law  as  lack- 
ing testamentary  capacity.-' ^'^ 

Those  who  were  not  born  deaf  and  dumb,  but  became  so  by 
accident  subsequent  to  birth,  were  not  regarded  by  the  old  com- 
mon law  as  incapacitated  to  make  a  will.^^^  There  has  never 
been  any  serious  question  that  one  who  is  blind  is,  as  far  as 
such  disability  is  concerned,  perfectly  competent  to  make  a 
will.^^^  Similarly  a  testator  who  is  deaf  and  blind  may  make 
a  will,  whether  his  infirmities  arise  from  disease,  congenital 
defects  or  old  age.^*^*^ 

There  is,  of  course,  in  the  case  of  the  deaf  and  dumb,  and  of 
the  blind,  a  chance  for  imposition  and  deceit  in  making  wills. 
This,  however,  belongs  under  the  topics  of  "Execution," 
"Fraud,"  "Mistake"  and  "Undue  Influence,"  rather  than  under 
the  topic  of  "Mental  Capacity." 


196  Goods  of  Geale,  3  S.  &  T.  430 ; 
33  L.  J.  P.  125;  12  W.  R.  1027; 
Potts  V  House,  6  Ga.  324.  But  if 
the  evidence  fails  to  show  that  the 
deaf  and  dumb  person  could  com- 
municate his  wishes  by  intelligi- 
ble signs,  the  court  will  not  admit 
his  will  to  probate.  Goods  of  Ows- 
ton,  2  Sw.  &  Tr.  461;  31  L.  J.  P. 
177;   6  L.  T.  368;   10  W.  R.  410. 

197  Weir  V.  Fitzgerald,  2  Bradf, 
(N.  Y.)    42    (67). 

198  Yong  V.  Sant,  1  Dyer  56a, 
note.  In  this  case  it  was  said  that- 
if  by  accident  one  born  with  all  his 
senses  were  to  become  deaf,  dvimb 
and  blind  he  must  henceforth  be 
treated   as   non   compos   mentis. 

199  Edwards  v.  Fincham,  4  Moore 
P.  C.  198;  Mitchell  v.  Thomas,  6 
Moore  P.  C.  137;  King  v.  Berry, 
Ir.  Rep.  5  Eq.  309;   Clifton  v.  Mur- 


ray, 7  Ga.  564;  Martin  v.  Mitchell, 
23  Ga.  382;  Reynolds  v.  Reynolds, 
1  Spears  (S.  Car.)  253;  Ray  v. 
Hill,  3  Strob.  (S.  Car.)  297;  Neil  v. 
Neil,  1  Leigh  (Va.)  6.  Though  if 
the  evidence  makes  it  appear  that 
a  blind  man  signed  the  will  without 
understanding  its  contents  it 
should  be  refused  probate.  Dufar 
V.  Croft,  3  Moore  P.  C.  136.  (In 
this  case  the  mental  capacity  of 
the  testator  was  very  doubtful ) . 

200  A  testator  over  a  hundred 
years  old,  and  blind  and  deaf,  can 
make  a  will.  Wilson  v.  Mitchell, 
.101  Pa.  St.  495. 

Under  same  circumstances  a  man 
of  eighty-five  could  make  a  will. 
Naptie's  Estate,  134  Pa  St.  492; 
Sehr  V.  Lindemann,  Mo.  (1899)  ;  54 
S.  W.  537. 


140  LAW    OF    WILLS. 


CHAPTER    IX. 

MISTAKE,  FRAUD,  UNDUE  INFLUENCE  AND  DURESS. 

§118,     Classes   of  mistake. 

The  doctrine  of  mistake,  in  the  law  of  wills,  is  one  of  com- 
paratively slight  importance,  since  it  is  rarely  invoked.  The 
facts  which  give  any  opportunity  to  apply  the  doctrine  of  mis- 
take nearly  always  so  involve  fraud  and  undue  influence  that 
these  different  doctrines  are  all  involved   in  the  same  case.-^ 

In  the  cases  where  mistake  can  be  separated  from  these  other 
principles  of  law,  it  appears  that  mistake,  as  applied  to  wills, 
must  be  divided  into  mistake  in  the  execution,  and  mistake  in 
inducement  causing  the  will,  but  without  any  mistake  as  to 
execution. 


§119.     Mistake  in  execution. 

Mistake  in  the  execution  exists  where,  from  some  cause,  the 
testator  executes  a  will  of  whose  nature  and  contents  he  is  in 
fact  ignorant.  This  mistake  is  generally  due  to  fraud  or  lack 
of  capacity,  or  both.  The  effect  of  mistake  in  execution,  no 
matter  what  its  cause,  is  to  avoid  the  will,  since  the  vdll  is 
executed  without  the  animus  testandi? 

iCoghill    V.    Kennedy,     119    Ala.  2  Waite  v.  Fri-sbie,  45  Minn.  3G1  ; 

641 ;  24  So.  459 ;  Haines  v.  Hayden,  Hildreth  v.  Marshall,   51   N.  J.   Eq. 

95   Mich.   332;    Budlong's  Will,   126  241:     Baker     v.     Baker,     102     Wis. 

N.    Y.    423.  226;   78  N.  W.  453. 


141 

LAW    OF    WILLS. 

Thus,  where  a  testator  signed  his  will,  thinking  that  it  was 
a  direction  for  his  burial,  such  will  was  held  invalid.^ 

§120.     Mistake  in  inducement. 

A  mistake  in  inducement  exists  where  testator  is  mistaken 
as  to  facts  which  cause  him  to  draw  up  and  execute  the  will 
that  he  does,  where  he  intends  to  execute  the  very  instrument 
that  he  did.  hut  where  he  would  not  have  executed  such  a  will 
with  full  knowledge  of  the  facts.  The  rule  upon  this  subject 
is  that  a  will  is  valid,  even  though  made  by  reason  of  a  mistake 

of  fact.^ 

Two  reasons  may  be  assigned  for  this  rule. 
First  The  statute  upon  the  subject  of  wills  does  not  pro- 
vide that  any  mistake  of  fact  shall  avoid  the  will,  but,  on  the 
contrary,  expressly  provides  that  a  will  executed  by  a  testator 
of  full  age,  sound  and  disposing  mind  and  memory,  and  not 
under  restraint,  shall  be  valid.  To  add  to  these  requirements 
that  testator  must  not  be  mistaken  as  to  a  material  fact  is  to 
legislate,  not  to  construe  the  statute. 

Second.  To  inquire  into  what  testator  would  have  wished 
to  do  if  he  had  kno^^al  the  material  facts,  and  to  determine  just 
to  what  extent  his  will  is  affected  by  the  mistake  is  a  task  of 
intolerable  diiSculty.  Xo  one  prol)ably  ever  made  a  will  with 
absolute  and  perfect  knowledge  of  every  fact  which  might  affect 
his  disposition  by  will;  and  to  determine  the  exact  effect  of 
each  mistake  is  a  task  upon  which  no  court  could  enter.  Ac- 
cordingly it  is  held  that  a  mistake  even  upon  so  vital  a  matter 
as  the  hostility  of  the  heirs  towards  testator,^  or  the  legitimacy 

sHildreth  V.  Marshall,  51   N.  J.  5  Kidney's    Will,    33    N.    B      9 ; 

fl^  ^      Ruffino'sEstate,  lieCal.  304;  Kim- 

^'"Ruffino's   Estate,   116   Cal.    304;  ^-ly's  Appeal^  68  Conn^  ^.^     SaU^ 

Wenning   v.    Teeple,    144   Ind.    180:  -  ^  ^  ^'  ^«  ^;^  ^^^'^'^f  ^3^ 

41  N.  E.  600;  Livingston's  Will   (N.  v.    Jordan,      50    N.     J-     ^q^    'f' 

J    Prerog.),    37    Atl.    770:    Stewart  Martin   v.   Thayer,    37   \^     Va.    38 

I:  Jorda:,  50  N.  J.  Eq.  733:  Clapp  ^aynard  v    Ty  e.    16     Mass.   107, 

V.  Fullerton.  34  N.  Y.  190:  Martin  White's  Will,  121  N.  \.  406. 
V.  Thayer,  37  W.  Va.  38. 


142  LAW     OF     WILLS. 

of  his  own  child,^  or  a  mistake  as  to  the  fact  that  his  supposed 
wife  really  had  a  former  husband  living  and  not  divorced  '^  is 
not  such  a  mistake  as  to  avoid  the  will. 

The  cases  where  the  mistake  is  the  result  of  misrepresenta- 
tion, and  is  itself  only  a  means  of  exercising  undue  influence, 
must  be  distinguished  from  these  cases  of  mistake  alone.^ 

§121.     Mistake. — Statutory   rule. 

In  Georgia,  by  statute,  the  rules  here  given  have  been  changed 
in  part,  and  any  mistake  of  fact  on  the  part  of  testator  as  to 
the  existence  of  conduct  of  an  heir  invalidates  a  will  as  far  as 
such  heir  is  concerned ;  ^  and  the  heir  need  not  show  that  but 
for  such  mistake  he  would  have  taken  under  the  will.^*^  But 
where  contestant  had  claimed  to  be  the  nearest  relative  of  tes- 
tator, and  it  appeared  that  testator  knew  of  his  claims,  and  had 
ample  opportunity  to  determine  whether  the  claim  was  well 
founded  or  not,  it  was  held  that,  even  if  testator  were  in  error 
in  believing  that  such  person  was  not  his  nearest  relative,  this 
was  not  a  mistake  of  fact  as  to  the  existence  of  an  heir  within 
the  meaning  of  the  statute.^ -^ 

A  mistake  as  to  the  property  owned  by  testatrix  and  a  dis- 
pute over  certain  rents  arising  therefrom,  which  the  beneficiary 
received  as  his  o^^m,  and  which  testatrix  at  once  charged  up  to 
him  as  advancements,  is  not  such  a  mistake  under  this  statute 
as  to  affect  the  validity  of  the  will.-^^ 

Statutes  avoiding  the  will  where  testator  was  mistaken  as  to 
the  existence  of  a      ild  are  quite  common.^  ^ 

6  Kidney's  WiH,  33  N'.  B.  9;  » Jones  v.  Grogan,  98  Ga.  552. 
Smith  V.  Smith,  48  N.  J.  Eq.  566;  lo  Mallery  v.  Young,  98  Ga.  728. 
Clapp  V.  Fullerton,  34  N.  Y.  190.  n  Young  v.  Mallory  (Ga.)   (1900), 

7  Wenning    v.    Teeple,     144    Ind.  35  S.  E.  278. 

189  ;  41  N.  E.  600.  12  Meeks  v.  Lafley,  99  Ga.   170. 

8  See    Sec.    128;    Coghill   v.    Ken-  i3  See  See.  291. 
nedy,    119    Ala.    641;    24    So.    459; 

•Haines    v.    Hayden,    95    Mich.    332; 
Budlong's  Wili,  126  N.  Y.  423. 


LAW     OF     WILLS.  148 

§122.     Fraud. — General  discussion  and  classification. 

Fraud  is  in  its  nature  closely  allied  to  undue  influence,  and 
in  many  cases  where  the  issue  to  be  tried  is  devisavit  vel  non, 
it  is  practically  impossible  to  distinguish  the  two,  as  the  same 
evidence  often  tends  to  support  each  charge.-^  ^ 

The  confusion  is  increased  by  the  theory  sometimes  expressed 
by  the  courts  that  undue  influence  is  to  be  treated  as  a  kind  of 
constructive  fraud.-^^  But,  while  allied  to  undue  influence, 
fraud-  is  not  the  same  thing.  Undue  influence  is  essentially 
overpowering  the  will ;  fraud  is  deceit.  Such  considerations 
have  led  courts,  where  the  rules  of  pleading  permit  of  a  dis- 
tinction between  fraud  and  undue  influence  in  making  up  the 
issues,  to  hold  that  fraud  is  not  the  same  thing  as  undue  in- 
fluence, and  that  an  allegation  of  the  one  does  not  include  an 
allegation  of  the  other.^^ 

Like  mistake,  fraud  is  to  be  classified  under  the  two  general 
heads  of  fraud  in  the  factum,  or  execution,  and  fraud  in  the 
inducement. 

§123.     Fraud  in  execution. 

Fraud  in  the  execution  exists  where  a  person  is,  by  wilfully 
false  statements  of  fact  made  to  him  with  intent  to  deceive  him 
and  resulting  in  his  actual  deception,  induced  to  execute  an 
instrument  of  whose  nature  and  contents  he  is  ignorant.-''^ 

When  the  testator  signs  an  instrument  misapprehending  its 
nature  and  contents  through  fraud  it  is  equally  invalid,  whether 
he  thinks  he  is  signing  a  different  sort  of  instrument  from  a 
will,^^  or  whether  he  knows  that  he  is  signing  a  will,  but  is 
deceived  as  to  its  contents.-^  ^ 

i4Coghill    V.    Kennedj^    119    Ala.  Waite    v.    Frisbie,    45    Minn.    3G1 ; 

041,  24  So.  459;  Lyon  v.  Dada,  111  Burns's   Will,    121   N.  Car.   336;    28 

Mich.  340;  69  N.  W.  654.  S.  E.  519;  Hildreth  v.  Marshall,  51 

13  Coghill    V.    Kennedy,    119    Ala.  N.   J.   Eq.   241 ;    Chappell  v.   Trent, 

G41:    Shipman   v.   Furness,   69   Ala.  90   Va.    849;    Baker   v.    Baker,    102 

555;     Smith    v.    Ilenline,     174    111.  Wis.  226 ;  78  N.  W.  453. 

184.  18  Hildreth  v.  Marshall,  51  N.  J. 

i6\vilson's   Estate,    117    Cal.   262.  Eq.    241. 

17  Smith  V.  Henline,  174  111.  184;  i9  Waite  v.  Frisbie,  45  Minn.  361. 


144  LAW     OF     WILLS. 

Thus,  where  testatrix  had  caused  a  will  to  be  prepared  bj 
which  property  was  left  to  her  brothers  in  trust  for  a  grand- 
child, and  one  brother  and  an  attorney  whom  testatrix  trusted 
completely  suggested  that  the  trust  might  be  invalid,  and  sug- 
gested the  omission  of  the  clause  creating  the  trust,  without 
explaining  that  the  effect  of  such  omission  was  to  give  the 
brothers  the  estate  absolutely,  to  the  exclusion  of  the  grand- 
child, it  was  held  that  this  was  such  fraud  as  to  invalidate  the 
will.-*^ 

And  in  another  case  one  of  the  natural  beneficiaries  induced 
testatrix  to  leave  him  her  personal  property  by  will  and  her 
real  estate  to  the  other  beneficiaries,  a  disposition  which  was  at 
the  time  a  fair  one,  and  afterward,  in  pursuance  of  his  previous 
plan,  he  induced  testatrix  to  convey  her  real  estate  to  him  by 
deed,  taking  his  notes  in  payment.  She  made  these  transfers, 
thinking  by  his  statements  that  the  equal  disposition  made  in 
the  will  was  imaffected.  On  her  death  he  claimed  the  real 
estate  by  deed,  and  the  personal  property,  including  his  o^vn 
notes,  by  the  will.^^ 

§124.     Fraud  in  inducement. 

Fraud  in  the  inducement  consists  of  wilfully  false  statements 
of  fact  which  are  intended  to  and  do  induce  testator  to  execute 
the  instrument  which  he  does  execute,  with  full  knowledge  of 
its  nature  and  contents.  Where  the  fraud  is  in  the  inducement 
as  distinct  from  the  execution,  the  same  considerations  apply 
to  the  validity  of  a  will  obtained  thereby  as  to  a  will  executed 
under  a  mistake  of  fact.  The  Statute  of  Wills  makes  no  pro- 
vision for  fraud;  and  the  difficulties  of  inquiring  into  the 
exact  effect  of  deceit  upon  the  mind  of  the  testator  and  the 
extent  to  which  it  influenced  him  are  intolerable.  It  is  held, 
accordingly,  that  fraud  in  the  inducement  alone,  where  not 
amounting  to  undue  influence,  does  not  vitiate  the  will.^^ 

20  Lyon  V.   Dada,   111   Mich.   340.  627;  24  So.  374;   Orth  v.  Ortli,  145 

21  Such  conduct  was  held  to  Ind.  184;  44  N.  E.  17;  Wenning 
amount  to  undue  influence.  Jones  v.  Teeple,  144  Ind.  189;  41  N.  E. 
V.  Simpson,  171  Mass.  474;  50  N.  600;  Stewart  v.  Jordan,  50  N.  J. 
J,   94Q  Eq.    733;    Salter   v.    Ely,   56   N.    J. 


22  Moore    v.    Heineke,     119    Ala.       Eq.  357. 


LAW    OF    WILLS.  145 

§125.     Undue  influence. — Definition. 

Undue  influence  is  "such  as  in  some  measure  destroys  the 
free  agency  of  testator  and  prevents  the  exercise  of  that  dis- 
cretion which  the  law  requires  that  a  party  should  possess."  -^ 
It  consists  in  such  influence,  overpersuasion,  coercion  or  force 
as  destroys  the  free  agency  and  will  power  of  testator.^"* 

Another  definition,  involving  the  same  idea,  is  that  undue 
influence  is  that  ascendency  which  prevents  testator  from  ex- 
ercising his  unbiased  judgment.*^'^ 

Another  definition  is  "Any  improper  or  wrongful  constraint, 
machination  or  urgency  of  persuasion  whereby  the  will  of  a 
person  is  overpowered  and  he  is  induced  to  do  or  forbear  an 
act  which  he  would  not  have  done  or  forborne  had  he  been  left 
to  act  freely."  ^'^ 

Other  definitions  given  by  the  courts  involve  substantially 
the  same  idea.^'^ 

The  rules  for  determining  what  undue  influence  is  are  the 
same  for  wills  executed  in  pursuance  of  a  power  as  for  wills 
disposing  of  testator's  own  property.^^ 


§126.     Theory   of  undue   influence. 

The  theory  underlying  the  doctrine  of  undue  influence  is  that 
the  testator  is  induced  by  the  various  means  employed,  which 
are  hereafter  discussed,  to  execute  an  instrument  which,  though 
in  outward  form  and  appearance  his,  is,  in  reality,  not  his  will, 

23  Johnston  v.  Armstrong,  97  Ala.  27  Shipman    v.    Furness,    69    Ala. 
731;   12  So.  72.  555;     Gilbert    v.    Gilbert,    22    Ala. 

24  Steele  V.  Helm,  2  Marv.  (Del.),  529;    Potts    v.    House,    6    Ga.    324; 
237;    Eiley    v.    Sherwood,    144    Mo.  Sullivan    v.    Foley,     112    Mich.    1; 

McFadin   v.   Catron,    138    Mo.  -   70  N.  W.  322   (1)  ;  Turner  v.  Chess- 

120  Mo.   252.  man.  15  N.  J.  Eq.  243;  Gardiner  ^' 

25Coghill    V.    Kennedy,    119    Ala.  Gardiner,  34  N.  Y.  155;   O'Neall  v. 

641;  24  So.  459.  Farr,   1   Rich.    (S.  Car.).  80;   Chap- 

26  Smith  V.  Henline,   174  111.  184.  pel  v.  Trent.   90  Va.   849:   Barbour 

(The    court    in   this   case    spoke    of  v.  Moore,  4  App.  D.  C.  535;   Knox 

undue    influence   as   a    sort   of   con-  v.  Knox,   95   Ala.  495;    11    So.   125. 

structive    fraud    which    the    court  28  Coleman's   Estate,    185   Pa.   St. 


354 
197 


would    not   undertake   to   define   by      437. 
fixed  words.) 


146  LAW    OF    WILLS. 

but  the  will,  wish  and  desire  of  some  other  person.  Such  in- 
strument, therefore,  though  signed  by  the  testator,  is  not  ex- 
ecuted by  him  animo  testandi.  This  important  and  inherent 
element  is  lacking.^^ 

Undue  influence  is  to  be  distinguished,  furthermore,  from 
lack  of  capacity.  It  is  true  that  a  person  who  lacks  mental 
capacity  to  make  a  will  does  not  execute -a  will  animo  testandi. 

In  both  undue  influence  and  lack  of  mental  capacity  this 
inherent  element  is  wanting.  But  where  testator  lacks  mental 
capacity  he  is  not  capable  of  entertaining  the  animus  testandi. 
In  cases  of  mere  undue  influence  the  testator  is  capable  of  en- 
tertaining the  animus  testandi,  but  on  account  of  the  circum- 
stances he  does  not  in  fact  entertain  it. 

This  distinction  between  lack  of  capacity  and  undue  influence 
is  sometimes  expressed  by  saying  that  undue  influence  presup- 
poses and  requires  mental  capacity  as  essential  to  its  existence.^" 
This  statement  is  true  in  the  following  sense:  If  testator  has 
mental  capacity,  the  question  of  undue  influence  may  become 
of  vital  importance  as  the  only  available  means  of  attacking  the 
will,  while  if  the  testator  has  not  mental  capacity,  there  is  no 
need  of  invoking  the  doctrine  of  undue  influence  to  overthrow 
the  will.3i 

In  determining  a  case  involving  undue  influence,  the  question 
is  not  what  effect  the  influence  actually  exerted  would  have  had 
upon  an  ordinarily  strong  and  intelligent  person,  but  what 
effect  the  influence  actually  exerted  had  upon  the  person  on 
whom  it  was  exerted,  taking  into  consideration  the  time  and 
place  and  all  the  surrounding  circumstances.^^ 

29Krankel  v.  Krankel    (Ky.).  50  ley  v.  Park,  135  Ind.  440;   Griffith 

S.    W.    863;    Campbell    v.    Barrera  v.  Diffenderfer,  50  Md.  480;  Shailer 

(Tex.  Civ.  App.),  32  S.  W.  724.  v.  Bumstead,  99  Mass.  112;  Sullivan 

30  Orchardson   v.   Cofield,   171   111.  v.   Foley,    112   Mich.    1;    70   N.    W. 

14;   Gwin  v.  Gwin    (Ida.),  48   Pae.  322;  Rollwagen  v.  Rollwagen,  63  N. 

295;    Thompson    v.    Kyner,    65    Pa.  Y.    504;    Perrett    v.     Perrett,     184 

St.  368.  Pa.    St.    131 ;    Reichenbach   v.   Rud- 

siManley's    Exr.    v.    Staples,    65  dach,    127    Pa.    St.    564;    Knox    v. 

Vt.   370.  Knox,    95    Ala.    495;     11    So.    125. 

32  Olmstead  v.   Webb,   5   App.   D.  Contra,  St.  Leger's  Appeal,  34  Conn. 

C.  .38;  Henry  v.  Hall,  106  Ala.  84;  434. 
Mooney  v.  01  sen,  22  Kan.  69 ;  Gur- 


LAW     OF    WILLS.  ^^* 

Thus,  misrepresentations  and  attacks  upon  natural  objects 
of  testator's  bounty  where  testator  was  well  and  strong 
and  within  reach  of  the  protection  of  those  who  were 
thus  denounced,  were  held  not  to  amount  to  undue  in- 
fluence ;  ^^  while  similar  misrepresentations  and  attacks  upon 
the  natural  objects  of  bounty  made  to  a  testator  who  is 
sick  and  unable  to  ascertain  the  truth  for  himself  may  be 
undue  influence  ;2^  and  urgent  solicitation,  while  not  usually 
undue  influence,  may  amount  to  such  where  testatrix  is  at  the 
point  of  death  and  utterly  exhausted  when  she  makes  her  will.^^ 

While  in  the  sense  above  given,  undue  influence  presupposes 
capacity,  nevertheless  the  question  of  the  mental  and  physical 
condition  of  testator  is  a  matter  of  great  importance.  This 
topic  belongs  under  "Evidence"  and  will  be  discussed  there.'^^ 

§127.     Elements  of  undue  influence. 

As  the  name  implies,  undue  influence  is  a  form  of  influence 
exerted  upon  testator  whereby  he  is  induced  to  make  the  will 
that  he  does  in  fact  make.  Accordingly,  if  it  can  be  sho\^ai 
that  the  alleged  influence  did  not  operate  upon  the  mind  of 
testator  and  induce  him  to  make  the  will  which  he  made,  such 
alleged  influence  is  clearly  not  undue  influence.^'^ 

Thus,  where  the  person.  A,  who  was  claimed  to  exert  the 
undue  influence,  wished  to  be  the  beneficiary  under  testator's 
will,  and  testator,  instead,  left  his  property  to  A's  daughter 
and  niece,  to  A's  great  anger,  it  was  held  that  no  undue  in- 

33  Salter  v.  Ely,  56  N.  J.  Eq.  357 ;  Tyler,   1G8  Mass.  107 ;   In  re  Wills' 

Dumont   v.    Dumont,    46    N.   J.    Eq.  Estate,    67    Minn.    335;    Maddox    v. 

223.  Maddox,    114    Mo.    35;    Doherty    v. 

siCoffhill    V.    Kennedy,    119    Ala.  Gilmore,    13G    Mo.    414;    Norton   v. 

041;  24  So.  459.  Paxton,    110   Mo.   456;    Berberet  v. 

35Gurley  v.  Park,   135  Ind.  440;  Berberet,  131  Mo.  399;  McFadin  v. 

Chappell  V.  Trent,  90  Va.  849.  Catron,   138   Mo.    197;    Hampton  v. 

36  See   Sec.   428.  Westcott,  49  N.  J.  Eq.  522;   Miller 

37Ethrid<ie    v.     Bennett's    Exrs.,  v.  Oestrich,  157  Pa.  St.  264;  In  re 

9  Houst.    (Del.),  295;   Wilcoxon  v.  Douglass's    Est.    162    Pa.    St.    567; 

Wilcoxon,    165    111.    454;    Harp    v.  Peery  v.  Peery,  94  Tenn.  328;   Me- 

Parr,  168  111.  459;  Herbert  v.  Long  Master  v.  Scriven,  85  Wis.  162. 
(Ky.),   23   S.   W.   658;    Maynard  v. 


148  LAW    OF    WILLS. 

fluence  existed  ;38  ^nd  where  testatrix  voluntarily  took  vows, 
upon  entering  a  religious  order,  to  will  all  her  property  to  this 
order,  and  never  was  dissatisfied  with  such  vow,  undue  influ- 
ence was  not  present.^^ 

So,  where  it  was  claimed  that  testator  was  unduly  influenced 
by  his  wife,  but  the  will  actually  made  did  not  provide  for  her 
as  well  as  she  would  have  been  provided  for  by  law  had  testator 
died  intestate,  undue  influence  did  not  exist.'* "^ 

Influence,  it  must  be  noticed,  is  not  of  itself  undue  influence. 
Aro-imient,  persuasion  and  appeals  to  the  affection,  which  do  not 
destroy  free  agency,  are  not  of  themselves  undue  influence  ;^^ 
nor  are  advice  and  persuasion.^^  g^  ^j^en  the  evidence  showed 
that  testator  had  endeavored  to  live  in  peace  with  his  daughter 
and  her  children,  but  could  not,  it  was  no  evidence  of  undue  in- 
fluence that  his  sister  advised  him  to  send  the  daughter  away 
if  he  could  not  get  along  with  her.^^ 

False  and  malicious  statements  concerning  the  natural  ob- 
jects of  testator's  bounty  are  not  of  themselves  undue  influ- 
ence; such  as  information  concerning  the  vicious  habits  of  a 
son  of  testator,  or  criticism  of  such  habits  ;^^  or  conveying  in- 

38  Hampton  v.  Westcott,  49  N.  cial  relations  comes  without  suspi- 
J.  Eq.  522;  Westcott  v.  Sheppard,  cion  or  taint  of  illegality,  and  there 
61  N.  J.  Eq.  315.  can    be  no  presumption  that'  it  is  un- 

39  Will's  Estate,  67  Minn.   335.  lawfully  exercised  merely  from  the 

40  Maynard  v.  Tyler,  168  Mass.  fact  that  it  appears  that  when  the 
iQy  will  was  made  the  testator  was  sur- 

41  Eastis  V.  Montgomery,  93  Ala.  rounded  by  it,  and  it  operated  on 
293-  Lyons  v.  Campbell,  88  Ala.  his  mind  to  induce  the  testamentary 
4G2;  Turner's  Appeal,  72  Conn.  305;  disposition.  It  is  only  when  such 
Beyelot  v.  Lestrade,  153  111.  625;  influence  is  shown  to  have  been  un- 
Wilcoxonv.  Wilcoxon,  165  111.  454;  duly  exerted  oyer  the  subject  of 
Barlow  v.  Waters,  —  Kv.— ;  28  S.  will-making,  so  as  to  constrain  the 
W  785 ;  Ma^^lard  v.  Vinton,  59  testator  to  do  that  wliich  he  would 
Mich.  139;  Hughes  v.  Murtha,  32  not  have  done  if  left  to  himself, 
N.  J.  Eq.  288;  Jones  v.  Roberts,  that  the  law  condemns  it."  Arn- 
37  Mo  App.  163;  Riley  v.  Sher-  ault  v.  Arnault,  52  N.  J.  Eq.  801. 
wood,  144  Mo.  354;  Pensyl's  Will,  *2  Ball  v.  Kane,  1  Penn.  (Del  ) 
157  Pa.  St.  465;  Peery  v.  Peery,  90;  Wilcoxon  v.  Wilcoxon,  165  111. 
94  Tenm  328;  Trezevant  v.  Rains,  454;  Sullivan  v.  Foley,  112  Mich.  1; 
85  Tex    3'>9                                                     Hurley  v.  O'Brien,  34  Oreg.  58. 

"EveVwill    is    the    product    of  *^  ^°^  ^-  ^^'^^^^l"'  l^l^'f-  f,!" 

some  influence.  The  influence  which  ^*  Defoe  v.  Defoe,  144  Mo.  458. 

arises  from  legitimate  family  and  so- 


LAW     OF     WILLS.  ^^^ 

formation  as  to  unkind  and  unpleasant  remarks  concerning 
testatrix  made  by  her  sister.^^  In  order  to  amount  to  undue 
influence,  the  advice,  persuasion,  entreaty  and  the  like  must 
therefore,  first,  actually  influence  testator  to  make  the  will  that 
he  does  make ;  and  second,  exert  such  influence  as  is  too  power- 
ful for  the  mind  of  testator  Uy  resist."**^  It  is,  therefore,  error 
to  charge  that  the  jury  must  not  consider  the  degree  or  extent 
of  the  undue  influence,  and  that  it  was  sufiicient  to  invalidate 
the  will,  however  slight.^ ^ 

§128.     Classes  and  forms  of  undue  influence. 

Undue  influence  may  be  divided  into  actual  or  direct  undue 
influence,  and  presumptive  or  constructive  undue  influence ;  the 
distinction  between  the  two  classes  being  in  the  manner  of  prov- 
ing the  undue  influence.  Actual  or  direct  undue  influence  is 
that  which  is  proven  by  showing  specific  acts  on  the  part  of 
the  party  exercising  undue  influence,  whereby  the  mind  of  tes- 
tator is  overpowered.  This  effect  may  be  produced  in  several 
ways: 

(1)  Appeals  to  the  affection  and  emotions  of  testator,  solic- 
itation and  persuasion  may  be  carried  to  such  a  degree  as  to 
overpower  his  mind,  and  in  such  case  will  amoimt  to  undue 
influence.^  ^ 

45  Campbell  v.  McGuiggan  (N.  J.  L.  J.  179;  Frost  v.  Dingier,  18  Pa. 
Prer.),  34  Atl.  383.  St.    259;     Pensyl's    Est.,     157    Pa. 

46  Bulger  V.  Ross,  98  Ala.  2G7  ;  St.  405 ;  Robinson  v.  Stuart,  73  Tex. 
Eastis  V.  Montgomery,  93  Ala.  293;  267;  Trezevant  v.  Rains,  85  Tex. 
9  So.  311;  Carpenter's  Estate,  94  329 ;  Chappell  v.  Trent,  90  Va.  849 ; 
Cal.  406 ;  McDevitt's  Estate,  95  Cal.  Davis  v.  Strange,  86  Va.  793;  8 
17 ;  Spencer's  Estate,  96  Cal.  448  ;  In  L.  R.  A.  261. 

reCarriger,  104Cal.81;/nreLang-  47  Riley    v.    Sherwood,    144    Mo. 

ford,    108   Cal.   008;   In  re  Calkins-,  354. 

112   Cal.   296;    Bevelot  v.   Lestrade,  48  Higginbotham  v.  Higginbotham, 

153  111.   635;    Storey's  Will,  20  111.  106   Ala.   314;    Gwin   v.   Gwin,   Ida. 

App.    183;    Denning  v.   Butcher,   91  48  Pac.  295;   Smith  v.  Henline,  174 

lo.    425;    Grove   v.    Spiker,    72    Md.  111.    184;    Bevelot    v.    Lestrade,    153 

300;    Maynard  v.   Vinton.   59  Mich.  111.   625:    Barlow  v.   Waters,  — Ky. 

155:  Suliivan  v.  Foley,  112  Mich.  1  :  — :28  S.  W.  785;  Rivard  v.  Rivard, 

Mitchell's  Estate.  43  Minn.  73:  Mc-  109    Mich.    98;    Gordon    v.    Burris, 

Faddin    v.     Catron,    138    Mo.     197;  141    Mo.    602;    Miller    v.    Oestrich, 

Thompson    v.     Ish,     99     Mo.     160:  1.57  Pa.  St.  264;  Perrett  v.  Perrett, 

Hampton  v.  Westcott,  49  N.  J.  Eq.  184  Pa.  St.  131. 

.522;    Carroll    v.    House,    14    N.    J. 


150  LAW     OF     WILLS. 

(2)  Flattery  may  be  of  such  sort  as  will  amount  to  undue  in- 
fluence. This  is  usually  combined  with  deceit  and  solicita- 
tion.^^ 

(3)  Fraud  and  deceit  may  be  made  the  means  whereby 
testator's  mind  is  overpowered,  in  which  case  they  will  amount 
to  undue  influence.^° 

Fraud  is  itself,  as  we  have  seen,^^  essentially  different  from 
undue  influence.  Still,  fraud  in  the  inducement,  while  in 
itself  not  sufiicient  to  invalidate  the  will,  may  so  affect  the 
mind  of  testator  as  to  amount  to  undue  influence.  Thus,  false 
statements  as  to  the  conduct  of  those  who  are  the  natural  ob- 
jects of  testator's  bounty,^^  or  as  to  legitimacy  of  testator's 
child^^  may  amount  to  undue  influence.  False  statements  as 
to  the  identity  and  character  of  the  beneficiary  under  the  will 
may  amount  to  undue  influence.^'' 

Presumptive  or  constructive  undue  influence  is  that  which 
is  inferred  from  the  circumstances  of  the  case,  and  the  rela- 
tions of  the  parties.  Undue  influence  is  peculiarly  a  question 
of  fact.  The  rules  of  substantive  law  on  this  subject  are 
neither  many  nor  complicated.  The  greater  number  of  ques- 
tions to  be  determined  in  these  cases  are  those  upon  evidence. 
For  these  reasons  the  subject  of  presumptive  undue  influence 
will  be  considered  under  the  subject  of  "Evidence  of  Undue 
Influence."  ^^ 

49  0rchardson  v.  Cofield,   171   111.  Mich.   340;    Budlong's  Will,   126  N. 

14;    Riley    v.    Sherwood,    144    Mo.  Y.  423;  Gordon  v.  Burris,,  153  Mo. 

354.  223 ;  54  S.  W.  546. 

As,  where  among  other  means  of  ^i  See  Sees.  122,   123  and  124. 

undue  influence,  the  beneficiary,  who  52  Coghill    v.    Kennedy,    119    Ala. 

represented   himself    to   be   a   being  641,   24    So.   459;    Higginbotham   v. 

like  Christ,  agreed  to  dedicate  to  tes-  Higginbotham,  106  Ala.  314;   Defoe 

tatrix  the  book  whereby  he  was  to  v.    Defoe,    144    Mo.    458 ;    Salter    v. 

regenerate    the   world.      Orchardson  Ely,    56   N.   J.    Eq.    357;    Budlong's 

V.  Cofield,   171  111.   14.  Will,  126  N.  Y.  423. 

50  Coghill    V.    Kennedy,    119    Ala.  53  Haines    v.    Hayden,    95    Mich. 

641 ;   24   So.  459 ;   Higginbotham  v.  332. 

Hi-ginbotham,    106    Ala.    314;    Or-  54  Orchardson   v.   Cofield.   171   111. 

ehardson    v.    Cofield,    171    111.    14;  14,  distinguishing  Whipple  v.  Eddy, 

Jones   V.    Simpson.    171    Mass.    474;  161   111.   114. 

50   N   .E.    940 ;    Haines   v.   Hayden.  55  See    Chapter    XIX,    Sees.    408- 

95   Mich.    332;    Lyon   v.   Dada.    Ill  421. 


LAW     OF     WILLS.  151 

§129.     Who  may  exert  undue  influence. 

The  undue  influence  is  generally  exerted  by  the  beneficiary 
under  the  will ;  but  this  is  not  necessary.  If  influence  is  ex- 
erted to  such  a  degree  as  to  be  undue,  by  one  who  is  not  a 
beneficiary  under  the  will,  the  will  caused  by  such  undue  in- 
fluence is  as  invalid  as  if  the  influence  were  exerted  by  one 
of  the  beneficiaries.^^ 

At  the  same  time  it  is  true  that  "It  is  a  strong  circumstance 
tending  to  show  the  absence  of  any  undue  influence  when  the 
proof  fails  to  connect  the  beneficiary  in  the  will  in  any  way 
with  the  making  of  the  will  either  by  agency,  procurement, 
suggestion,  solicitation  or  knowledge  of  its  execution."  ^"^ 

§130.     Time  at  which  undue  influence  may  exist. 

In  order  to  avoid  the  will,  it  must  be  shown  that  the  undue 
influence  operated  at  the  time  that  the  will  was  made,  and 
caused  its  execution.^ ^  Thus,  where  the  undue  influence  was 
exercised  before  the  will  was  executed,  but  such  influence  per- 
sisted until  after  the  execution  of  the  will,  it  vitiated  the 
will ;  ^^  while  influence  exerted  after  the  will  was  made  can  not 
affect  its  validity,  no  matter  how  overpowering ;  *^^  even  if 
such  subsequent  influence  goes  to  the  extent  of  preventing  tes- 

56  "It   is   of  course   equally   fatal  Eckert   v.    Flowry,   43   Pa.    St.   46; 

to   the   validity   of   a   will    whether  Keichenbach    v.    Ruddach,    127    Pa. 

the  undue  influence  was  exerted  by  St.  564 ;  Gable  v.  Rauch,  50  S.  Car. 

proponent  or  another  person."  Bar-  95;  Campbell  v.  Barrera   (Tex.  Civ. 

ney's  Will,  70  Vt.  352.  App.),  32  S.  W.  724. 

To  the  same  effect  are  Coghill  v.  "Undue    influence,    however   used, 

Kennedy,     119    Ala.    641;     Drake's  must,    in   order   to    avoid    the   will, 

Appeal,  45  Conn.  9;   Smith  v.  Hen-  destroy  the  free  agency  of  the  tes- 

line,    174    111.    184.  tator   at  the  time  and   in  the  very 

5"  Harp     V.     Parr,    168     111.    459,  act  of  making  the  testament."  Trost 

citing  Goodbar  v.  Lidikey,  136  Ind.  v.  Dingier,  118  Pa.  St.  259. 
1;    Douglass's    Estate,    162    Pa.    St.  59  Overall  v.  Bland    (Ky.),   12   S. 

567.  W.  273. 

58  Kaufman's     Estate,     117     Cal.  6o  Haines    v.    Hayden,    95    Mich. 

288;Poolerv.Cristman,  145  111.405;  332:    Riley    v.    Sherwood,    144    Mo. 

Guild  V.  Hull,  127  111.  523;  Brown-  354;    Gable    v.    Rauch,    50    S.    Car. 

field    V.    Brownfield,    43    111.     147;  95. 


152  LAW    OF    WILLS. 

tator  from  revoking  his  will  when  he  wishes  to  do  so.^^  In- 
fluence exerted  before  the  will  was  made,  not  shown  to  have 
persisted  to  the  date  of  the  execution  thereof,  does  not  of  itself 
avoid  the  will.*^^ 

§131.     Effect  of  undue  influence. 

Undue  influence  avoids  such  part  of  the  will  as  is  caused 
thereby.  If  the  whole  will  is  the  product  of  undue  influence 
it  is  thereby  entirely  avoided.''^  Thus  fraud  amounting  to 
undue  influence  vitiates  a  will  like  any  other  form  of  undue 
influence.^^ 

Where,  however,  it  can  be  sho\vn  that  a  part  of  the  will 
was  caused  by  undue  influence,  and  that  the  rest  of  the  will 
was  not  caused  thereby,  and  the  part  of  such  will  caused  by 
undue  influence  can  be  separated  from  the  rest,  leaving  it 
intelligible  and  complete  in  itself,  it  is  held  that  only  such  part 
of  the  will  as  is  caused  by  undue  influence  is  invalid,  and  the 
rest  is  valid.^^ 

§132.     Injustice  of  will  not  undue  influence. 

A  testator  of  full  age,  sound  and  disposing  mind  and  mem- 
ory, and  not  under  restraint,  may  make  such  disposition  of  his 
property  as  does  not  conflict  with  the  law.      The  fact,  then, 

81  Floyd  V.  Floyd,  3  Strobh.  ( S.  65  Trimblestown  v.  D'Alton,  1  Dow- 
Car.),  44.  and  Clark,  85;  Allen  v.  McPherson, 

62  Mitchell  V.  Donahue,  100  Cal.  1  H.  L.  Cas.  191 ;  Henry  v.  Hall,  106 
202;  Batchelder  v.  Balchelder,  139  Ala.  84;  Fastis  v.  Montgomery,  93 
Mass.  1;  Ketchum  v.  Stearns,  76  Ala.  293;  Lyons  v.  Campbell,  88 
Mo.  396.  Ala.  462;   Florey  v.  Florey,  24  Ala. 

63  Knox  V.  Knox,  95  Ala.  495;  248;  Harrison's  Appeal,  48  Conn. 
11  So.  125;  Smith  v.  Henline,  174  202;  Morris  v.  Stokes,  21  Ga.  552; 
111.  184;  Rivard  v.  Rivard,  109  Randolph  v.  Lampkin,  90  Ky.  551; 
Mich.    98;    Riley   v.    Sherwood,    144  10  L.  R.  A.  87. 

Mo.    354;    Perrett    v.    Perrett,    184  "The    jury    upon    sufficient    proof 

Pa.  St.   131;   Barney's  Will,  70  Vt.  may  strike  out  his  legacy  and  estab- 

352.  lish  the  balance  of  the  will  so  that 

64  Higginbotham  v.  Higginbotham,  the  will  may  be  good  as  to  one  party 
106  Ala.  314;  Gordon  v.  Burris  and  bad  as  to  another."  Morris  v. 
153  Mo.  223;   54  S.  W.   546;   Bud-  Stokes,   21   Ga.   552. 

long's  Will,  126  N.  Y.  423. 


153 

LAW    OF    WILLS. 


that  a  testator  with  such  qualifications  makes  a  foolish,  un- 
natural or  unjust  will,  does  not  show  that  undue  influence 
caused  the  will.^'^  Thus  the  fact  that  testator  left  more  to 
his  children  by  his  second  marriage  than  those  by  his  hrst 
marriage  does  not  establish  undue  influence  on  the  part  oi 
his  second  wife.^^  So  the  fact  that  testator  excludes  his  wife 
and  children  entirely  from  all  of  his  property  that  he  could 
does  not  show  that  undue  influence  necessarily  produced  the 

will-''  .  A 

\n  unjust  will  executed  on  account  of  strong  and  unrea- 
sonable prejudices  of  testator  is  not  on  that  account  to  be 
reo-arded  as  the  product  of  undue  influence.^^  So  a  will  due 
to" the  strong  prejudices  of  the  testator  against  the  Roman 
Catholic  religion  was  held  not  to  be  attributable  to  undue 
influence  where  the  will  on  this  account  excluded  his  nieces, 
one  of  whom  had  married  a  Catholic  and  the  other  was  en- 
aao'ed  to  one,  even  though  testator  was  angered  at  receiving  a 
letter  from  a  nephew  containing  false  statements  about  the 
conduct  and   behavior   of  these   niecesJ^      A  will  caused  by 

66  Burney  v.  Torrev,  100  Ala.  157  ;  e^  Nicewander  v.  Nicewaiider,  151 

Chandler  v.  Jost,   9G   Ala.   596;    In  111.    156;    Sehr   v.    Lindemann,   Mo. 

McLane-s    Estate,    21    D.    C.    554;  1899;   54  S.  W.  537. 

Kaenders  v.  Montague,  180  111.  300 ;  -  Kessinger  v.  Kessmger    37  Ind. 

tlollenbeck    v.    Cook,    180    111.    65;  341;    ^^-^^^  ^T"     110  N    Y 

Pooler    V.    Cristoan,    145    111.    405;  Eq.  801;  In  re  Mondorf,  10  N.  1 

Conway  v.   Vizzard,    122   Ind.   266;  450;    Monroe  -/^f  ^'^  ^L^^- g'^ 

In     re     Merriman,    108  Mich.  454;  302;    Dean    v.    Negley,    41    Pa^  St. 

Maddox    V.    Maddox,    114    Mo.    35;  312;  McClure  v   McClure    8^  Tenn 

Farmer    v.    Farmer,    129    Mo.    530;  173;    Kudy    ^-^^^.c^'  ^'   J-  f;." 

T      1   ^     !^n    isr     T     Ea  177  ;  Main  v.  Rider,  84  Pa.  bt.  Zi/ , 

Stewart    v.    Jorda^n,    50    N.    X    Eq.  ^^^  ^^.^_  ^^^ .    .^ 

733;    Bennett  v.   Bennett,   50  JSI.  J.  '-uuei 

Vn    439-   James  v.  Sutton,  36  Neb.  N.  \A  .  240. 

l^q.  i6J,   uaiut^s  69  Mitchell's  Estate,  43  Mmn.   <3; 

393;    Dohertvv.   Gilmore,   136  Mo.  mucne  rn    N^     T     Ea 

Kaufman  v.   Caughman,  49   b.  e.ar.  <m,    v                            irn-NT   V    'i84- 

^T  TT    r      ,.     Pn+rnn     l'>0   Mo  Dobie  V.  Armstrong,  160  N.  Y.  5»4 , 

^.   Sr  ::  M^rro";   \u  l.  .ox  v.  M^^^n,  ^O.  W.^.  .«.  ,  so  N 

35-    Arnault  v.   AniaiiU,   52  N.  J.  W.  921.                                  rn    n     T 

Eq.  801;  Smith  V.  Smith.  48  N.  J.  "Stewart    v.    .Jordan,    50    N.    J. 

Eq.    566;    Trezevant    v.    Rains,    85  Eq.  733. 
Tex.  329;  Martin  v.  Thayer,  37  W. 
Va.  38. 


154  LAW     OF     WILLS. 

dislike  of  testator's  son,  due  to  a  long  standing  quarrel  with 
testator's  wife,  in  which  the  son  sided  with  his  mother  is  not, 
of  course,  the  result  of  undue  influence.'^ 

§133.     Duress. 

Duress,  in  this  connection,  may  be.  defined  as  the  use  of 
coercion  or  force  to  such  a  degree  that  it  destroys  the  free 
agency  and  will  power  of  testator."^^  Duress  and  undue  in- 
fluence are  not  infrequently  confused,  owing  to  a  fondness  for 
similes  in  judicial  opinions.  Thus  it  has  been  said  that  the 
influence  to  be  imdue  must  amount  to  a  moral  coercion.'^^ 
Duress  is  not,  however,  a  necessary  element  of  undue  in- 
fluence; and  it  is  error  to  instruct  the  jury  that  influence 
must  amount  to  force  or  coercion  in  order  to  affect  the  will  as 
undue  influence. ''^^  Still  less  is  physical  force  a  synonym  for 
undue  influence.'^ ^  But  the  exercise  of  actual  duress,  which 
causes  testator  to  make  a  will  that  he  would  not.  otherAvise 
have  made,  will  render  the  will  invalid.  This  is  occasionally 
expressed  by  saying  that  it  will  amount  to  undue  influence. 
Thus,  threats,  force  and  violence  exerted  toward  testator  to 
induce  him  to  make  his  will,  will  if  successful  amount  to 
undue  influence;  or  more  exactly,  will  avoid  the  will.'^'^ 
Threats  and  violence  towards  those  closely  related  to  testator, 
who  are  the  natural  objects  of  his  bounty,  will,  if  they  cause 

TiDobie  V.  Armstrong,  160  N.  Y.  Ala.    157;    Eastis    V.    Montgomery, 

584.  93    Ala.    293;    Knox    v.    Knox,    95 

72  Riley  v.  Sherwood,  144  Mo.  Ala.  495;  Bancroft  v.  Otis,  91  Ala. 
354;  McFadin  v.  Catron,  120  Mo.  279;  Chappell  v.  Trent,  90  Va. 
252.  849. 

73  "It  must  go  to  the  extent  of  Thus  a  charge  that  undue  in- 
dfipriving  the  testator  of  his  free  fluenoe  "must  amount  to  force  and 
agency  and  amount  to  moral  coer-  coercion"  to  make  the  will  invalid 
Clon  which  he  is  unable  to  resist."  was  held  reversible  error.  Chap- 
Peery  v.  Peerv,  94  Tenn.  328,  citing  pell  v.  Trent,  90  Va.  849. 
Nailing  v.  Nailing,  2  Sneed,  630;  75  Estes  v.  Bridgeforth,  114  Ala. 
Wisener  v.  Maupin,  2  Bax.  342.  221. 

74  Higginbotham  v.  Higginbotham,  76  Sullivan  v.  Foley.  112  Mich.  1; 
106  Ala.  314;  Estes  v.  Bridgeforth.  Peery  v.  Peery,  94  Tenn.  328. 

114  Ala.  221 ;  Burney  v.  Torrey,  100 


155 

LAW     OF     WILLS. 

testator  to  make  a  will  that  he  would  not  otherwi^  have  made, 
render  such  will  invalidJ'^  . 

In  the  law  of  wills  duress  is  often  classed  under  undue  in- 
fluence ^«  The  sub-divisions  of  duress  need  not  be  considered 
here  in  detail.  As  far  as  the  reported  cases  go  it  is  believed 
that  duress  of  the  person  of  testator  or  of  his  family  is  the 
only  form  that  has  been  presented  for  adjudication  m  the  law 
of  wills;  duress  of  goods  never  having  been  discussed. 

.T  Frye  v.  Jones,  Ky.  24  S.  W.  5;  In  the  law  of  contracts   however 

95  KV    148;  Capper  V.  Capper,  172  objection  has  been  made  to  classmg 

I,         Vcl    \^  N    E    98  duress   in  this  way,  though   it  has 

"^rnan  'v     H^il     18    L.    T.    152;  been  said  "Duress  is  but  the  extrem. 

Haydock  v.  Haydock.  33  N.  J.  Eq.  of  undue  if ---•     Na^^-^l  ^^^ 

494 ;    Layman    v.    Conrey,    60    Md.  v.  Wheelock,  52  0.  S.  534. 

286. 


156  LAW    OF     WILLS. 


CHAPTER   A. 

WHAT  CAN  BE  DISPOSED  OF  BY  WILL. 

§134.     Property  in  general. 

We  have  seen  that  at  common  law  no  legal  interests  m  real 
property  could  be  devised ;  and  that  there  were  originally  se- 
rious limitations  upon  the  power  of  disposing  of  personalty. 
These  restrictions  have  gradually  been  swept  away  by  statute 
until  with  certain  limitations  all  the  property  rights  belonging 
to  testator  which  would  have  passed  to  his  heirs,  or  his  per- 
sonal representatives,  had  he  died  intestate,  may  pass  by 
will.  The  language  of  most  Wills  Acts  is  that  any  person 
of  specified  qualifications  'having  any  property'  may  dispose 
of  'the  same'  by  will  and  testament,  executed  in  the  form 
required  by  statute.  Accordingly,  it  will  be  assumed  that  un- 
der modern  statutes  the  power  of  disposition  by  will  pertains 
to  property  as  such  except  where  limited  by  spex^ific  statute, 
by  the  nature  of  the  property,  or  by  the  interests  of  others  in 
the  property  sought  to  be  disposed  of. 

§135.     Ownership  of  property  disposed  of  by  wiU. 

'No  property  can  be  disposed  of  by  testator's  will  except 
such  as  belongs  to  testator,^  since  no  one  can  pass  title  to  the 
property  of  another;  unless,  of  course,  in  pursuance  of  a 
power  giving  him   express   authority   to   make   such   disposi- 

1  Young  V.   Snow,   167  Mass.  287. 


LAW    OF    WILLS.  ^^^ 


tion.2  Tims  a  married  woman  who  is  empowered  Lj  statute 
to  devise  her  separate  property,  can  not  dispose  of  property 
accumulated  during  coverture  by  husband's  labor,  even 
thouo-h  it  is  evidenced  by  notes  and  mortgages  which  the  mar- 
vied  woman  has  renewed  in  her  own  name.^  So  one  to  whom 
support  for  life  has  been  given  can  not  dispose  by  will  of 
any  accumulations  of  income  over  and  above  such  support. 

In  accordance  with  this  general  principle,  a  testator  can  not 
devise   his    property   free    from    any   liens    or    encumbrances 
which  he  may  have  created  thereon  in  his  lifetime;  such  as 
an  outstanding  lease  with  option  for  a  further  lease.^      This 
principle  is  so  self-evident  that  the  mere  statement  would  seem 
sufficient.     There  are,  however,  certain  peculiar  and  interest- 
ing applications  of  the  general  rule    arising  in  cases  where 
property   rights    are   misunderstood.      It   often   happens   that 
important   and  valuable   property   interests   in   the   forms   ot 
life  insurance,  dower,  curtesy,  homestead  rights  and  commun- 
ity property  are  ignored,  and  dispositions  of  property  by  will 
are  made  without  any  reference  to  them.     These  special  cases 
need  further   discussion.      The  proposition   that  testator  can 
not  dispose  by  will  of  the  property  rights  of  any  but  himself 
is  so  clear  that  no  dispute  ordinarily  arises,  except  over  the 
construction  of  the  will   which  gives  something  of  value  to  the 
person  whose  property  interests  testator  has  attempted  to  be- 
stow upon   others.      These   questions   are   therefore  generally 
presented    under   election.^ 

§136.     Insurance  policies. 

Testator  can.  not,  by  will,  pass  proceeds  of  insurance  policies 
upon  his  OAvn  life,  though  he  has  taken  them  out  and  paid  the 
premiums,  where  the  policies  are  by  their  terms  payable  to 
a  specified  person,  and  where  testator  has  no  power  to  change 

2  See  Chap.  XXXII.  ^  In  re  Kidd    (1894),  3  Ch.  Div. 

3  Wehle  V.  Umpfenbach  —  Ky.  — ,       558. 

2.3  S.  W.  360.  '  See  Ch.  XXXIV. 

i  Kimball  v.  New  Hampshire 
Bible  Society,  6,5  N.  H.  139;  See 
Sec.  605. 


168  LAW     OF     WILLS. 

tke  beneficiary ;''  or  has  power  to  change  in  a  specified  manner 
which  he  has  not  seen  fit  to  use;  but  a  policy  payable  to  in- 
sured's "executors,  administrators  and  assigns"  may  be  dis- 
posed of  by  will,^  or  one  in  which  the  name  of  the  beneficiary 
is  purposely  left  blank.^ 

Where  testator  has  a  right  to  dispose  of  his  policy  by  will, 
the  fact  that  he  also  attempted  to  transfer  the  policy  to  the 
legatee,  by  a  void  assignment,  does  not  prevent  the  will  from 
taking  effect.^"  Where  the  insured  may,  by  law,  declare  that  a 
specified  policy  is  in  trust  for  his  Avife,  by  a  'writing'  identify- 
ing the  policy,  and  thereby  create  such  an  interest  in  his  wife 
that  her  claim  is  prior  to  that  of  her  husband's  creditors,  a 
will  may  be  such  a  writing  ;^^  but  where  by  the  terms  of  the 
insurance  policy,  the  policy  is  payable  to  the  beneficiary  named 
therein,  unless  the  insured  appoints  a  different  payee  by  an 
order  acknowledged  before  a  justice  of  the  peace,  a  will  can 
not  be  a  substitute  for  such  an  order,  in  order  to  pass  the 
policy.^ ^  By  special  statute  the  beneficiary  of  the  policy 
may  bequeath  his  interest  therein  by  testament.^  ^ 

§137.     Dower,  curtesy,  and  distributive  share  of  personalty. 

Under  the  dower  acts  now  in  force  a  husband  can  not  de- 
vise his  land  to  others    to  the  exclusion  of  his  wife's  dower 

7  Block    V.    Association,    52    Ark.  O.   S.   561 ;    Masonic   Association   v. 

201;   De  Silva  v.  Supreme  Council,  Jones,  154  Pa.  St.   107;   Schardt  v. 

109   Cal.   373;   Masonic  Association  Schardt,    100   Tenn.   276. 

V.    Severson,    71    Conn.    719;    Mar-  » In  re  Davies    (1892),  3  Cli.  63; 

tin  V.  Stubbings,  126  111.  387;  Wil-  Hartwig    v.    Schiefer,    47    Ind.    64; 

burn  V.  Wilburn,  83  Ind.   55;   Hoi-  46   N,   e.    75;    Colder  v.    Chandler, 

land  V.Taylor,  111  Ind.  121;  Haine  87   Me.   63;    Fox  v.   Senter,  83   Me. 

V.   Iowa   Legion  of    Honor,    78    lo.  295. 

245;  Weisert  v.  Muehl,  81  Ky.  336;  o  Hannigan  v.  Ingraham,  55  Hun, 

Colder    v.    Chandler,    87    Me.     63;  257. 

Daniels    v.    Pratt,    143    Mass.    216;  lo  Stoelker   v.    Thornton,   88    Ala. 

Pingrey  v.  Ins.  Co.,  144  Mass.  374;  241;   6  L.  R.  A.   140. 

Am.  Legion  of  Honor  v.  Perry,  140  "  McKibbon   v.    Feegan,   21    Ont, 

Mass.  580;  Masonic  Benevolent  As-  App.  87. 

sociation   v.    Bunch,    109    Mo.    560;  12  Mellows  v.   Mellows,   61   N.   H. 

Mellows  V.  Mellows,  61  N.  H.  137;  137. 

Arthur  v.  Odd  Fellows'  etc.,  Assn.,  1 3  Harvey   v.   Van   Cott,   71    Hun. 

29  0.  S.  557;  Chareh  v.  Charch,  57  394:  Small  v.  Jose.  86  Me.  120. 


LAW    OF    WILLS. 


159 


rights.  This  right  is  consummate  upon  the  husband's  death, 
and  is  inchoate  upon  the  acquisition  of  the  realty  bj  him 
during  coverture.  It  has  therefore  a  priority  over  a  devise 
of  such  realty  by  the  husband,  and  may  be  asserted  by  the 
wife  against  a  devisee  claiming  under  the  husband's  will.^* 
So  a  husband  can  not  be  deprived  of  similar  interests  in  his 
wife's  realty  without  his  consent.^  ^  This  consent  is  not  nec- 
essarily indorsed  on  the  will.  It  may  be  given  irrevocably 
by  an  ante-nuptial  contract.^  ^  A  husband  can  not  by  testa- 
ment, in  some  jurisdictions,  dispose  of  his  personalty  to  the 
exclusion  of  his  wife's  distributive  share  of  the  same.-^''^  In 
other  states,  however,  the  testator  may  by  will  exclude  his 
wife  from  share  in  his  entire  personal  estate.-^ ^  Dower,  cur- 
tesy and  distributive  share  of  personalty  are  at  modern  law 
creatures  of  the  local  statutes;  and  the  power  of  a  testator 
to  dispose  of  such  rights  by  will  is,  therefore,  in  each  juris- 
diction peculiarly  a  matter  of  local  policy  dependent  upon  the 
local  statutes. 

§138.     Homestead  rights. 

Under  modern  legislation,  in  some  states,  the  house  and 
land,  which  constitute  the  family  residence,  is  not  only  ex- 
empted in  some  cases  from  forced  sale,  but  is  appropriated 
after  testator's  death  to  the  use  of  the  widow  and  minor  chil- 
dren. Where  such  a  rule  is  in  force  it  is  generally  held  that 
a  husband  can  not  deprive  his  wife  of  her  homestead  right  in 

i^Purnell   v.   Reed,   32   Fla.   329;  (Ky.),  361;   Coomes  v.  Clements,  4 

13  So.  831;  Warren  v.  Warren,  148  liar.    &    M.     (Md.),    101;    Tyler    v. 

111.  641;  McClanahan  v.  Williams,  Wheeler,  160  Mass.  20G;  Doj'le  v. 
136  Ind.  30;   Pepper  v.  Thomas,  85   -  Doyle,  50  O.   S.  330;   Mclizet  s  Ap- 

Ky.   539;   Jennings  v.  Jennings,  21  peal,  17  Pa.  St.  449. 

0.  S.  56 ;  Hibbs  v.  Insurance  Co.  40  Nor    in    some    states    can   a   wife 

0.  S.  543;  Cunningham's  Estate,  137  exclude     her     husband.      Tyler     v. 

Pa.  St.  621 ;  Rutherford  v.  Mayo,  76  Wheeler,  160  Mass.  206. 

Va.  117;  Wilber  v.  Wilber,  52  Wis.  is  Perkins   v.    Little,    1    Me.    148. 

298.  So   in   Michigan   before   the   act   of 

13  Cook  V.  Adams,  169  Mass.  186.  1881.    Miller   v.    Stepper,    32    Mich. 

16  Cook  V.  Adams,  169  Mass.  186.  104. 

17  Cummings    v.    Daniel,    9    Dana 


160 


LAW    OF    WILLS. 


the  family  residence  by  devising  it  to  some  one  else;^^  and 
a  widow  may,  in  spite  of  her  husband's  will,  have  the  entire 
property  used  as  a  homestead  set  off  to  her,  though  testator's 
son  had  been  living  in  part  of  the  house  with  his  father's 
consent. ^^  So  the  husband  may  after  the  death  of  his  wife 
retain  the  homestead  occupied  by  them  in  their  joint  lives, 
even  though  it  belonged  to  the  wife,  and  she  has  devised  it 
to  others.^^ 

So  a  purchaser  in  good  faith  of  a  homestead  from  a  widow 
to  whom  the  law  gave  a  homestead  in  fee  may  hold  the  same 
in  fee,  though  by  a  will  which  was  never  probated  within  the 
state,  the  widow  was  given  a  life  estate  in  such  property,  and 
she  elected  to  take  under  the  will.^^  The  husband  may  de- 
vise a  homestead  in  fee  to  his  wife."^  A  husband  or  wife 
may,  however,  in  most  states  assent  in  writing  to  a  will  made 
by  deceased  spouse  devising  the  homestead  to  another,^^  and 
such  consent  may  be  given  after  the  death  of  such  deceased 
spouse.^^     Where  a  homestead  has  not  been  selected  in  the  life- 


19  Stokes  V.  Pillow,  64  Ark.  1 ; 
Matheny's  Estate,  121  Cal.  267; 
Walkerly's  Estate,  108  Cal.  627; 
49  Am.  St.  Rep.  97;  Stunz  v. 
Stunz,  131  111.  210;  Peebles  v. 
Bunting,  103  lo.  489 ;  In  re  Franke, 
97  lo.  704;  Hazelett  v.  Farthing 
(Ky.),  22  S.  W.  646;  15  Ky.  Law 
Rep.  197;  Pendergest  v.  Heekin 
(Ky.),  22  S.  W.  605;  15  Ky.  Law 
Rep.  180;  Myers  v.  Myers  (Ky), 
12  S.  W.  933;  11  Ky.  Law  Rep. 
659;  Pratt  v.  Pratt,  161  Mass. 
276;  Shorr  v.  Etling,  124  Mo.  42; 
Klcinman  v.  Geiselman,  —  Mo. — ; 
(1893),  21  S.  W.  796;  Wells  v. 
Congregational  Church,  63  Vt.  116; 
Contra,  in  Florida  a  certain  amount 
of  homestead  property,  ($1000), 
may  be  held  exempt  from  a  forced 
sale:  brt  testator  may  bequeath 
it  to  others  than  his  widow. 
Hinson  v.  Booth,  39  Fla.  333;  Scull 
V.  Beatty,  27  Fla.  426;  Purnell  v. 
Reed,    32    Fla.    329;     13    So.    831. 


So  in  Georgia.  Bostick  v.  Chovin, 
55  S.  Car.  427.  If  children  survive 
testator,  he  can  not  dispose  of  his 
liomestead  by  will.  Walker  v.  Red- 
ding, 40  Fla.  124. 

20  Pratt  V.  Pratt,  161  Mass.  276. 

21  Reed  v.  Talley,  13  Tex.  Civ. 
App.  286.  In  Missouri,  however,  a 
husband  has  no  homestead  estate 
of  any  kind  in  his  wife's  realty 
after  her  death.  Richter  v.  Bohn- 
sack,    144   Mo.    516. 

22  Van  Syckel  v.  Beam,  110  Ma 
589. 

Where  testator's  wife  dies  be 
fore  testator,  a  will  executed  bj 
him  during  her  lifetime  is  valid  tc 
pass  the  homestead.  Penstock  v. 
Wentworth,  75  Minn.  2. 

23Martindale  v.  Smith,  31  Kan. 
270. 

24  Eckstein  v.  Radl,  72  Minn.  95; 
Radl  V.  Radl,  72  Minn.  81. 

23  Radl  V.  Radl,  72  Minn.  81. 


LAW    OF    WILLS.  161 

time  of  testator,  his  wife  can  not,  after  his  death,  select  one 
ont  of  property  devised  by  him,  so  as  to  prevent  snch  devise 
from  taking  effect.^*'  If  the  husband  devises  property  to  his 
wife  in  lieu  of  her  homestead  interests,  and  she  accepts  such 
property,  she  can  not  have  her  homestead  in  his  property.^^ 

§139.     Comiminity  property. 

In  some  of  the  western  states  legislation  has  adopted  from 
the  Spanish  law  the  general  rule  that  matrimonial  gains  and 
acquets  belong  equally  to  husband  and  wife.  Where  this 
rule  is  in  force  the  gains  and  acquets  during  coverture,  which 
are  to  be  divided  equally  between  the  spouses,  are  known  as 
community  property,  and  a  testator  can  dispose  by  will  only 
of  his  own  half  of  the  community  property.  He  has  no  power 
to  dispose  of  the  half  of  the  community  property  belonging  to 
the  other  spouse.^^  But  testator  may  by  will  give  power  to 
his  executor  to  sell  conmnmity  property  in  order  to  pay  off 
claims  which  could  in  law  be  charged  against  such  property.-^ 

§140.     Non-surviving^  interests. 

The  interest  in  property  which  can  be  disposed  of  by  will 
must  further  be  one  which  will  survive  testator.  Thus,  testa- 
tor can  not  by  will  dispose  of  property  in  which  he  has  a  life- 
interest  only.^**  ISTor  can  testator,  in  jurisdictions  where  joint 
tenancy  still  exists,  devise  his  joint  interest  in  property  to 
the  prejudice  of  the  remaining  joint  tenants.^^ 

26  Eyres'  Estate,   7   Wash.  291.  471;    Haley   v.    Gatewood,    74    Tex. 

27  Warren  V.  Warren,  148  111.  64r  281;  Box  v.  Word,  65  Tex.  159; 
Blackmer's  Estate,  63  Vt.  236;  28  '  Hill's  Estate,  6  Wash.  285;  Ziegler 
Atl.  419;   See  Sec.  716.  v.  His  Creditors,  49  La.  Ann.   144. 

28  De  Grandmont  v.  Societe  des  29  Sharpe  v.  Loupe,  120  Cal.  89. 
Artisans,  15  C.  S.  147;  Sharpe  v.  30  Dorion  v.  Dorion,  20  Can.  S. 
Loupe,  120  Cal.  89;  Payne  v.  Payne.  C.  430;  Young  v.  Snow,  167  Mass. 
18  Cal.  291;  Scott  v.  Ward,  13  287;  Studdard  v.  Wells,  120  Mo. 
Cal.  459;   Neuber  v.   Shoel,  8  Kan.  25. 

App.  345:   55  Pae.  350;  Cox  v.  Von  31  Wilkins  v.  Young,   144  Ind.   1  : 

Ahlenfeldt.    50   La.    Ann.    1266 ;    23       41  N.  E.  68. 
So.   959;    Mayo   v.    Tudor,    74    Tex. 


162  LAW     OF     WILLS. 

An  estate,  however,  wliicli  is  a  life  estate,  subject  upon 
a  given  contingency  to  enlarge  to  a  fee,  may  be  devised  sub- 
ject to  the  fulfillment  of  such  contingency.  Thus,  where  tes- 
tatrix acquired  an  estate  by  a  consent  decree  in  a  partition 
suit,  which  was  to  be  a  life  estate  if  any  of  her  children  or 
their  issue  survived  her,  and  on  her  death  to  them,  but  which 
was  to  be  a  fee  simple  in  case  she  survived  them,  it  was  held 
that  her  estate  in  this  remainder  might  be  devised,  subject 
to  be  defeated  if  such  issue  survived  testatrix.^^ 

§141.     After-acquired  personalty. 

After  it  became  established  that  testator  might  dispose  by 
will  of  any  property  which  he  owned  at  the  time  of  the  execu- 
tion of  the  will,  another  and  different  question  was  raised 
where  testator  attempted  by  will  to  dispose  of  property  which 
he  did  not  own  at  the  time  that  he  made  the  will,  but  which 
lie  expected  to  acquire  afterwards. 

Personalty,  under  the  common  law,  might  be  disj)osed  of 
by  testament  executed  before  testator  became  the  owner  there- 
of. It  was  recognized  that  he  had  full  power  so  to  dispose  of 
his  property,  and  the  only  question  was  as  to  the  intention  of 
testator.^^  So  where  testator  can  control  the  disposition  of 
his  life  insurance,  he  may  do  so  by  will  if  conformable  to  the 
rules  of  the  company  and  the  terms  of  his  contract,  though 
such  property  does  not  accrue  to  his  estate  until  his  death.^'* 

32  Bigley  v.  Watson,  98  Tenn.  353  ;  Loverin  v.  Lamprey,  22  N.  H.  434 : 
38  L.  R.  A.  679.  McNaughton  v.  McNaughton,  34  X. 

33  James  v.  Dean,  11  Ves.  389;  Y.  201;  Frick  v.  Frick,  82  Md. 
affirmed  in  15  Ves.  236;  8  R.  R.  218;  Stannard  v.  Barnum,  51  Md. 
178 ;  Bland  v.  .  Lamb,  2  J.  &  440 ;  Dalrymple  v.  Gamble,  68  Md. 
VV.  405;  Wilde  v.  Holtzmeyer,  5  523;  Nichols  v.  Allen,  87  Tenn.  131 ; 
Ves.  811;  Nannock  v.  Horton,  7  Henderson  v.  Ryan,  27  Tex,  670. 
Ves.  399 ;  Smith  v.  Edrington,  8  34  Mackenzie  v.  Mackenzie,  3 
Cranch  (U.  S.),  66;  Marshall  v.  Mac.  &  G.  559;  Golder  v.  Chandler, 
Porter,  10  B.  Mon.  (Ky.).  1:  Wait  87  Me.  63;  Stoelker  v.  Thornton, 
V.   Belden,   24   Pick.    (Mass.),    129;  88  Ala.  241;  62  R.  A.  140. 


LAW    OF    WILLS. 


163 


§142.     After-acquired  realty. 

But  in  devises  of  realty  it  was  settled,  at  common  law,  that 
a  will  could  operate  only  upon  the  land  owned,  by  testator  at 
the  time  that  he  executed  the  will,  and  that  after-acquired 
property  could  not  pass."^^  This  rule  rested  upon  two  bases. 
A  devise  of  land  was  treated  as  a  form  of  conveyance  under 
the  Statute  of  Wills,  and  it  was  a  well  settled  rule  of  common 
law  that  one  could  not  pass  title  to  real  estate  which  he  did 
not  at  that  time  possess.^ ^ 

Furthermore,  the  Statute  of  Wills  provided  that  those  'hav- 
ing lands'  might  pass  them  by  devise.  By  strict  construction 
of  this  statute  it  was  held  that  'having  lands'  restricted  devises 
to  lands  owned  at  the  time  of  the  will ;  and  that  "if  the  devisor 
has  not  the  lands  he  is  out  of  the  statute."  ^^  This  re- 
striction has  been  done  away  in  most  jurisdictions  by  statute, 
and  a  testator  may,  if  he  wish,  pass  by  his  will  after-acquired 
lands,  as  well  as  those  belonging  to  him  when  the  will  was 
executed.^^ 


35  Brydges  v.  Chandos,  2  Ves.  417 ; 
Nannock  v.  Horton,  7  Ves.  391 ; 
Langford  v.  Pitt,  2  P.  Wms.  629. 
Carroll  v.  Carroll,  6  How.  275; 
Brewster  v.  McCall,  15  Conn.  274; 
Ross  V.  Ross,  12  B.  Mon.  (Ky.), 
437;  Ballard  v.  Carter,  5  Pick. 
(Mass.),  112;  George  v.  Green,  13 
N.  H.  521;  Dodge  v.  Gallatin,  130 
N.  Y.  117;  Girard  v.  Philadelphia, 
4  Rawle  (Pa.),  323;  Raines  v.  Bark- 
er, 13  Gratt.  (Va.),  128;  Frazier  v. 
Boggs,  37  Fla.  307;  20  So.  245. 

26  Brydges  v.  Chandos,  2  Ves. 
417;  Langford  v.  Pitt,  2  P.  Wms. 
629;  Milnes  v.  Slater,  8  Ves.  Jr. 
295;  George  v.  Green,  13  N.  H. 
521. 

37  Bunter  v.  Coke,  1   Salk.  237. 
The  former  reason   is  said  to  be 

the  real  one,  the  latter  being  crit- 
icised in  Brydges  v.  Chandos,  2  Ves. 
417. 

38  Jepson  V.  Key,  2  K.  &  C.  873; 


10  Jur.  (N.  S.),  392;  10  L.  T.  68; 
12W.R.  621;  Doe  &  York  v.  Walk- 
er, 12  M.  &  W.  591;  13  L.  J.  Ex. 
153;  Langdale  v.  Briggs,  3  Sm.  & 
G.  246;  affirmed  8  De  G.  M.  &  G. 
391;  26  L.J.  Ch.  27;  2  Jur.  (N.  S.), 
982;  4  W.  R.  783;  Castle  v.  Fox, 
40  L.  J.  Ch.  302;  L.  R.  11  Eq. 
542;  24  L.  T.  536;  19  W.  R.  840; 
Harden  bergh  V.  Ray,  151  U.  S. 
112;  Gibbon  v.  Gibbon,  40  Ga.  562; 
Woman's  Missionary  Society  v. 
Mead,  131  111.  338;  Morgan  v.  Mc- 
-  Neeley,  126  Ind.  537;  Blakemore 
Succession,  43  La.  Ann.  845 ;  Paine 
Vw  Forsaith,  84  Me.  66;  Meserve 
V.  Meserve,  63  Me.  518;  Ruckle  v. 
Grafflin,  86  Md.  627 ;  Frickv.Frick, 
82  Md.  218:  Dalrymple  v.  Gamble, 
68  Md.  523;  Bedell  v.  Fradenburgh, 
65  Minn.  361 ;  68  N.  W.  41 ;  Gush- 
ing V.  Aylwin,  12  Met.  (Mass.), 
169;  Hale  v.  Andesley,  122  Mo. 
316;    Webb   v.    Archibold,    128    Mo. 


164  LAW    OF    WILLS. 

§143.     Classes  of  property  devisable. — Realty  in  general. 

Tkere  is  no  practical  difference  at  modem  law  between  legal 
and  equitable  interests  as  to  their  devisabilitj,  and  the  two 
classes  maj  be  discussed  together  for  convenience,  with  sub- 
sequent reference  to  the  peculiar  forms  of  equitable  interests.^'^ 
Thus  under  the  common  law  rule  that  after-acquired  lands 
could  not  be  devised,  testator  could  devise  lands  in  which  he 
had  equitable  interests,  even  though  he  afterward  acquired 
the  legal  title.^*^  Thus,  where  testator  had  contracted  to  pur- 
chase lands  by  a  contract  enforceable  in  equity,  he  thereupon 
acquired  an  equitable  interest  in  such  lands  which  he  could 
devise  by  will  executed  before  he  acquired  the  legal  title.^^ 
But  where  the  contract  Avas  not  enforceable  in  equity,  no 
equitable  interest  was  acquired,  and  such  realty  would  not 
pass  by  will  executed  before  testator  acquired  the  legal  estate.^^ 
A  testator,  however,  could  not  devise  an  equitable  interest  ac- 
quired after  his  will  was  executed,  as  where  he  contracted  to 
purchase  land  after  he  had  made  his  will.^^ 

§144.     Effect  of  disseisin. 

If  the  testator  has  both  possession  and  estate  in  land,  we 
have  seen  that  there  can  be  no  question  as  to  his  right  to  de- 
vise.^^  But  where  testator  was  disseised  of  his  land,  the  com- 
mon law  regarded  a  conveyance  of  such  land  as  champerty; 

299 ;  Flummerfeldt  V.  Flummerfeldt,  101;    1    Sm.    &    Gif.    101;     17    Jur. 

51   N.  J.  Eq.   432;   Lamb  v.  Lamb,  225;    (interests  created  by  contract 

131   N.  Y.   227;    Smith  v.  Jones,  4  to  buy  land). 

Ohio,  116;  Pruden  v.  Pruden,  14  O.  4i  Greenhill  v.  Greenhill,  2  Vern. 

S.  251;  Jacob's  Estate,  140  Pa.  St.  679;   Capel  v.  Girdler,  9  Ves.  510; 

268;    11    L.    Pv.    A.    767;    Gable   v.  Prideaux  v.  Gibbon,  2  Ch.  Gas.  144 ; 

Daub,  40  Pa.  St.  217;  In  re  Pearce  Seton  v.  Slade,  7  Ves.  274;  Broome 

20   R.   L    380;    Webster   v.   Wiggin,  v,  Monclc,  10  Ves.  605. 

19  R.  I.  73;  28  L.  R.  A.  510;  We'l-  42  Gascarth   v.   Lowther,    12    Ves. 

born  V.  Townsend,   31   S.  Car.  408:  107;  8  R.  R.  310. 

Haley   v.    Gatewood,    74    Tex.    281;  43  Langford   v.    Pitt.    2    P.    Wm». 

Hamilton  v.  Flinn,  21  Tex.  713.  629 ;   Lushington  v.  Sewell,  1  Russ. 

89  Perry  v.  Phelips,  1  Ves.  255.  &  M.   169. 

40Marston   v.    Roe,   8    Ad.    &   El.  44  See    Sec.    134. 
14;    Morgan   v.    Holford,    1    W.    R. 


165 

LAW    OF    WILLS. 

and  it  was  therefore  held  that  such  interest  could  not  be  de- 

vised 

Under  modern  law  the  old  rules  as  to  champerty  have  been 
in  a  -reat  measure  abandoned,  and  it  is  very  generally  held 
that  r  disseised  owner  of  lands  may  convey  his  estate  therein 
by  deed^*^  In  analogy  to  this  rule  it  is  generally  held  that 
a  testator  may  now  devise  all  the  interest  that  he  possesses 
in  land  of  which  he  is  disseised.'*^  ^ 

At  common  law  one  who  had  no  valid  title  to  certain  reax 
property  as  against  the  real  owner,  but  was  in  actual  adverse 
possession  of  such  property,  had  such  title  against  all  but  the 
true  owner  as  he  could  devise,^«  and  this  rule  is,  of  course, 
unchanged  by  modern  legislation. 

§145.     Estates  in  futuro. 

A  reversion  may  be  devised  by  the  owner  thereof.^^  A 
vested  remainder  may  be  devised,  if  it  is  an  estate  which  sur- 
vives the  testator.^*^  So  accumulations  which  by  statute  pass 
to  the  devisee  of  a  remainder,  pass  upon  the  death  of  such 
remainderman  before  his  estate  takes  effect  in  possession  to 
his  devise.^^  Likewise  may  a  contingent  remainder  be  devised 
where  the  contingency  is  one  of  event,  and  not  of  person. 
In  the  latter  case  there  is  no  one  to  devise  the  property. ^^ 
Thus  a  resulting  trust  contingent  upon  the  failure  of  issue 
of  certain  specified  persons,  is  devisable.^^ 

45Goodright  V.  Forester,  8   East.  634;    Carney   v.   Kain,    40    W.    Va. 

551;    Culley   v.   Doe,   11   Ad.   &   El.  758. 

1008-    Poor  V.  Robinson,   10  Mass.  5 o  Harvard  College  v.  Balch,  1/1 

131    '  111.  275. 

46  Cressinger  v.   Welch,   15   Ohio,  si  Tompkin's    Estate,    154    N.  Y. 


156 


634. 


47Atwood    V.    Weems,    99    U.    S.  52  Ingilby    v.    Amcotts     ^\^^T: 

183;    May    v.    Slaughter,    3    A.    K.  585;   25  L.  J.  Ch.  769  ;  2  Jur   (N.  S.), 

Marsh    (Ky.),   505;    Humes  v.   Mc-  410;  Collins  v.  Smith,  105  Ga.  5Z5; 

Farlane     4    S.    &    R.     (Pa.),    427;  Buck  v.  Lantz,  49  Md.  439;  Chess's 

Watts  V.  Cole,  2  Leigh    (Va.),  653.  Appeal,   87   Pa.   St.   362;    Loring  v. 

48Asher  V.  Whitlock  L.  R.,  1   Q.  Arnold,    15    R.    I.    428;    Bailey    v. 

g    1  Hoppin.    12    R.    I.    560;     Clark    v. 

■497.   .e   Hume    (C.    A.)     (1895),  Clark,  19  S.  Car.  345. 

lCh.Div.422:64L.J.Ch.  (N.  S.).  53  Carney    v.    Kain,    40    W.    Va. 

267;    Tompkin's   Estate,    154  N.   Y.  758. 


166  LAW    OF    WILLS. 

§146.     Possibilities. 

Mere  possibilities  are  said  not  to  be  devisable,  and  tins 
is  nndoubtedlj  true  if  the  term  'mere  possibilities'  is  restricted 
in  its  meaning.  In  this  sense  it  "signifies  nothing  more  than 
an  expectancy,  which  is  specifically  applied  to  a  mere  hope 
of  succession,  unfounded  in  any  limitation,  provision,  trust, 
or  legal  act  whatsoever."  ^"^  Thus  the  hope  of  the  heir  of  suc- 
ceeding to  his  ancestor's  estate  is  a  mere  possibility  which  is 
not  subject  to  devise,  and  the  hope  of  one  who  is  named  bene- 
ficiary in  the  will  of  another  of  succeeding  to  such  beneficial 
interest  is  such  a  mere  possibility  that  it  can  not  be  devised.^^ 

What  is  known  as  a  'possibility  coupled  with  an  interest' 
has  been  held  to  be  devisable.^ ^  It  has  been  held  that  money 
donated  by  the  United  States  Government  to  the  sugar  plant- 
ers of  Louisiana  as  a  bounty  may  be  bequeathed,  where  the 
planter  died  before  the  donation  was  in  fact  made  and  while  it 
was  merely  expected.^ ''^ 

§147.     Rights  of  entry  devisable. 

Mere  rights  of  entry  are  also  said  to  be  incapable  of  devise. 
This  statement  also  is  true  with  some  qualification  as  to  the 
meaning  of  'right  of  entry.' 

Where  this  term  is  applied  to  the  right  of  one  who  is  dis- 
seised of  realty  to  recover  the  same,  there  can  be  no  question 
that  under  modern  law  such  right  can  be  devised.^^  So  where 
the  term  is  used  to  denote  the  right  of  a  remainderman  or 
reversioner  to  cause  his  estate  to  take  effect  in  possession  be- 
fore the  particular  estate  originally  granted  is  determined, 
under  the  deed  creating  it,  by  electing  to  determine  the  par- 
ticular estate  on  account  of  some  act  or  default  of  the  par- 
ticular tenant,  such  right  can  pass  by  devise  together  -with 
the  remainder    or  reversion. 

51  Smith    on    Real    and    Personal  ^^  Moor     v.     Hawkins,      2     Eden. 

Property,  Sec.  192,  quoted  in  Need-  341 ;  Perry  v.  Phelips,  1  Ves.  255. 

les  V.  Needles,  7  O.  S.  432.  57  Allen's  Succession,  49  La.  Ann- 
as Hall  V.  Hall,  26  Md.  107 ;  Pate  1096. 

V.    Pate,    40    Miss.    750 ;    Perry    v.  58  See  Sec.  1 44- 

Hunter,  2  P.  T.  80. 


LAW     OF     WILLS. 


167 


Where  on  the  other  hand,  testator  has  parted  with  all  his 
interest  and  estate  in  certain  realty,  and  merely  reserves  a 
right  to  re-enter  for  breach  of  condition  subsequent,  such  right 
can  not  be  devised  unless  by  the  j)rovisions  of  express  statute.^'' 

So,  a  possibility  that  on  the  dissolution  of  a  corporation, 
real  estate  may  revert  to  the  grantor  is  not  devisable,^*^  and 
where  real  estate  was  granted  to  one,  reserving  to  grantor  a 
life  estate  and  providing  that  grantee  should  pay  the  taxes 
on  such  realty  and  support  grantor  for  life,  without  any  claim 
of  re-entry  or  forfeiture,  it  was  held  that  grantor  had  no  in- 
terest in  such  realty  that  could  be  devised.^^  In  some  juris- 
dictions whose  statutes  provide  that  any  person  may  devise 
all  rights  of  entry  for  condition  broken,  as  well  as  other  rights 
of  entry,  the  possibility  of  reverter  upon  failure  of  condition 
on  which  a  conditional  fee  simple  was  granted,  is  devisable.^^ 


59  Upington  v.  Corrigan,  151  N. 
Y.  143,  citing  and  following  Scliulen- 
berg  V.  Harriman,  21  Wall.  44; 
Ruch  V.  Rock  Island,  97  U.  S.  693; 
Southard  v.  R.  R.  2G  N.  J.  L.  13. 

"If,  therefore,  there  was  any  es- 
tate left  in  Mrs.  Davey  upon  her 
grant  to  Hughes,  it  was  not  one 
known  to  our  statute  on  real  prop- 
erty, and  all  expectant  estates,  with- 
in which  class  it  would  liaA'e  to 
fall,  are  abolished  by  the  article, 
except  such  as  are  therein  de- 
fined, and  which  must  be  either  es- 
tates limited  to  commence  in  posses- 
sion at  a  futvire  day  or  reversions. 
The  real  interest  contended  for  here 
would  not  satisfy  the  requirement 
of  either  class.  The  mere  posibil- 
ity  of  reverter,  which  was  all  there 
was  in  this  case,  could  not  be  in- 
cluded within  the  "reversions" 
spoken  of  by  the  statute,  either 
within  its  letter  or  spirit.  The 
Statute  of  Wills,  through  the  use 
of  such  precise  words  as  "every 
estate  and  interest  in  real  prop- 
erty descendible  to  heirs,"  obviously 
must  have  reference  to  siich  as  are 
recognized  by  the  Revised   Statutes 


to  be  estates  of  inheritance.  We 
would  be  without  warrant  in  as- 
serting the  existence  of  any  es- 
tate in  Mrs.  Davey  in  the  premises 
granted  to  Hughes,  whether  at  the 
common  law  or  under  the  Revised 
Statutes.  She  had  an  election  to 
enter  for  condition  broken,  and  she 
could  release  her  right  to  do  so. 
To  those  rights  her  heirs,  after 
her  decease,  succeeded  by  force  of 
representation  and  not  by  descent. 
There  was  no  estate  upon  which  the 
Statute  of  W^ills  could  operate, 
but  as  heirs  there  devolved  upon 
them  the  bundle  or  aggregate  of  the 
rights  which  resided  in  and  survived 
the  death  of  the  grantor,  their  an- 
cestor. Her  legal  personality  is  con- 
tinued in  them."  Upington  v.  Cor- 
rigan, 151  N.  Y.  143. 

So  Trustees  of  Presbyterian 
Church  of  Paris  v.  Venable,  159  111. 
21.5. 

60  Presbyterian  Church  v.  Ven- 
able, 159  111.  215. 

61  Studdard  v.  Wells,  120  :Mo.  25. 

62  Pemberton  v.  Barres  (1899), 
1  Ch.  Div.  544;  Rockwell  v.  Swift, 
59  Conn.  289. 


168  LAW    OF    WILLS. 

§148.     Equitable  interests. 

A  testator  who  o^vlled  equitaLle  interests  in  real  estate  could 
dispose  of  the  same  by  will,  as  well  as  if  he  had  the  legal  in- 
terest too.  The  questions  arising  under  this  doctrine  are 
chiefly  questions  of  real  property  law,  and  not  questions  con- 
cerning the  law  of  wills.  The  difficulties  which  present  them- 
selves are  almost  always  in  determining  whether  a  given  trans- 
action creates  a  mere  chose  in  action,  enforceable  by  action  at 
law ;  or  whether  it  creates  an  estate  which  equity  would  recog- 
nize and  enforce  by  means  of  specific  performance  or  other  ap- 
propriate remedy.  Thus,  where  testator  had  during  his  life- 
time entered  into  a  valid  and  binding  contract  for  the  pur- 
chase of  an  estate  in  lands,  by  which  testator  became  bound 
for  the  purchase  price,  and  the  former  owner  of  the  realty  be- 
came bound  to  convey  to  testator,  testator  thereby  acquires  an 
equitable  interest  in  such  land  contracted  for,  which  he  may 
devise.^^ 

This  is  an  ap^Dlication  of  the  doctrine  of  conversion  in  a 
special  case.  By  entering  into  a  valid  contract  for  the  pur- 
chase of  real  estate,  testator  in  equity  converted  his  personalty 
to  that  extent  into  realty ;  and  this  converted  personalty  passeci 
by  his  will  as  realty.  So  where  testator  has  conveyed  real 
property  under  such  circumstances,  that  equity  will  hold  his 
grantee  as  a  trustee  for  him  and  on  his  application  will  de- 
cree a  reconveyance,  he  has  such  an  equitable  estate  in  this 
property  that  he  may  devise  this  interest.  So  an  interest  in 
realty  which  can  not  be  asserted  unless  a  conveyance  or  release 
thereof  be  set  aside,  may  be  devised,  and  the  right  to  set 
such  conveyance  aside  will  pass  with  the  property.^'* 

Accordingly,  in  some  cases  where  the  sale  ultimately  fails, 
it  has  been  held  that  the  money  to  be  used  in  such  purchase 
should  pass  as  realty.      Out   of  these  rules,    as  to  equitable 

63  Broome  v.  Monck,  10  Ves.  Jr.  427;  4  De  G.  &  J.  78 ;  5  Jur.  (X. 
605;  Buckmaster  v.  Harrop,  7  Ves.  S.)  583;  Uppington  v.  Bullen,  2  Dr. 
341;  Dodge  v.  Gallatin,  130  N.  Y.  &  War.  184;  1  Con.  &  L.  291;  Cul- 
117.  ley  V.  Doe,  11   Ad.  &  El.  1008;   Cog- 

64  Gresley  v.  ]\Iousley,  28  L.  J.  Ch.  dell  v.  Widow,  Heirs,  etc.,  3  De 
620;   5  Jut.    (N.   S.)    583;   7  W.  R.  Saus.     (S.    Car.)     346. 


LAW     OF     WILLS.  169 

estates,  arose  an  apparent  exception  to  the  common  law  rule 
that  after-acquired  realty  could  not  be  devised.  If  a  testator 
had  an  equitable  interest  in  realty  at  the  time  that  he  executed 
his  will  and  afterward  he  had  the  legal  title  conveyed  to  him 
by  a  suit  for  specitic  performance,  or  otherwise,  the  realty 
was  not  regarded  as  after-acquired  realty,  but  it  passed  under 
the  will  by  virtue  of  his  o^vnership  of  the  equitable  estate 
when  he  made  the  will.^^ 

§149.     Rights  of  creditors. 

A  testator  has  no  power  to  dispose  of  his  property  by  will, 
so  as  to  interfere  with  the  rights  and  claims  of  his  creditors. 
Thus,  a  testator  can  not  direct  legacies  to  be  paid  to  infants 
within  the  time  limited  for  creditors  to  present  their  claims, 
since  no  bond  given  by  infants  to  refund  in  case  the  estate 
should  prove  insolvent,  could  be  enforced  against  them.^^  So 
as  between  his  devisee  and  his  creditors,  testator  can  not  de- 
vise realty  free  from  a  lien  for  the  unpaid  purchase  price.^^ 
This  fundamental  proposition  finds  its  chief  application  in 
cases  where  testator's  property  is  insufficient  to  pay  his  debts 
and  legacies.  In  such  case  (except  in  some  cases  of  legacies 
upon  valuable  consideration)  there  is  no  question  that  every 
legacy  must  fail  before  any  creditor  will  be  forced  to  yield 
any  part  of  his  claims.  The  only  question  is  as  between  the 
legatees  and  devisees,  in  what  order  the  devises  and  legacies 
are  to  be  used  to  pay  the  debts.^* 

65Marston    v.    Roe,    8    Ad.  &  El.  s?  Bradsher  v.  Hightower,  118  N". 

14;    Smith    v.    Jones,   4    Ohio,    116  Car.  399. 

66  Moore  v.  Moore,  50  N.  J.  Eq.  es  See      Chapters      XXXVI      and 

554.  XXXVIII. 


170  LAW    OF    WILLS. 


CHAPTER  XI. 

WHO  CAN  TAKE  UNDER  A  WILL  AND  TESTAMENT. 

§150.     Aliens Common  law  rule. 

At  the  common  law  an  alien  could  not  acquire  realty  by  the 
operation  of  the  law;  and  could  not  hold  realty  against  the 
government,  no  matter  how  such  realty  was  acquired.^  But 
there  was  no  restriction  uj)on  the  power  of  an  alien  to  acquire 
realty  by  purchase  other  than  by  operation  of  law.  He  could 
acquire  title  in  this  manner,  though  the  government  could  de- 
prive him  of  such  realty  by  a  direct  proceeding  for  that  pur- 
]30se,^  and  if  the  alien  became  naturalized  before  the  govern- 
ment took  advantage  of  his  disability,  his  title  was  unimpeach- 
able.^ 

Accordingly,  it  was  always  held  at  common  law  that  a  de- 
vise of  realty  to  an  alien  was  valid  and  passed  the  title  thereto.^ 
Since  only  the  government  could  attack  the  title  of  the  alien, 

1  1    Black.    Com.,    372 ;    2    Black.  Oregon    Mortgage    Co.   v.    Carstens, 

Com.,  249;  Washburn  on  Real  Prop.,  IG  Wash.  10.5. 

p.    48;    Manuel    v.    Wolf,    L52    U.  3  Manuel  v.  Wulff,  152  U.  S.  505 : 
S.  505 ;  Stevenson  v.  Dunlap,  7  T.  B.  "    Putters  v.  Dawson,  82  Tex.  18. 

Mon.      (Ky.),    134;     Hauenstein   v.  *  Taylor  v.   Benham,  5  How.    (X. 

Lynham,  28  Gratt.  (Va.)  62.  S.)    233;    Osterman    v.    Baldwin,    6 

2Quigley    v.    Birdseye,    11    Mont.  Wall.   IV.  S.)   116;  Harley  v.  State, 

439;  Wunderle  V.  Wunderle,  144  in.  40    Ala.    089:    Scanlan    v.    Wright, 

40;    19    L.    R.    A.    84;    Lenehan   v.  13  Pick.   (Mass.)   523;  Marx  v.  Mc- 

Spaulding,  57  Vt.  115;   Hubbard  v.  Glynn.  88  N.  Y.  357;  Gray  v.  Kauflf- 

Goodwin,  3  Leigh   (Va.)   492;  Goon  man,  82  Tex.  65. 
Gar  V.  Richardson,   16  Wash.   373; 


LAW    OF    WILLS. 


171 


neither  the  heirs  of  testator,  the  residuary  devisee,  nor  any 
other  person  could  take  advantage  of  alienage  to  defeat  the 
title  of  the  devisee.^  At  common  law  an  alien  might  acquire 
personal  property  and  hold  the  same  as  fully  as  a  citizen  might 
do,  unless  such  alien  was  or  became  an  alien  enemy  and  the 
state  confiscated  his  property.^  An  alien  might  therefore 
take  personal  property  under  a  testament  as  a  citizen  might. 

§151.     Aliens Modern  statutory  rule. 

The  modern  statutes  of  most  American  states  allow  an  alien 
to  inherit  and  take  by  devise  as  fully  as  a  citizen  eouldJ 
But  in  some  states  statutes  forbid  non-resident  aliens  to  ac- 
quire any  interest  in  real  estate.*^  In  such  states  it  is  held 
that  the  United  States  treaties  with  certain  foreign  nations  con- 
ferring the  right  upon  the  citizens  of  each  party  to  the  treaty 
to  hold  real  estate  within  the  other  nation  supersede  the  state 
laws  disqualifying  aliens  to  take,  as  far  as  the  citizens  of  such 
nations  are  concerned.^  But  aliens  may  in  Iowa  acquire  by 
devise,  or  other  form  of  purchase,  not  over  three  hundred  and 
twenty  acres  of  land  if  within  five  years  from  acquiring  such 
lands  they  are  placed  in  the  actual  possession  of  a  relative 
of  the  alien  within  the  third  degree,  and  within  ten  years 
from  the  date  of  acquiring  such  lands,  such  relative  becomes 


5  Brigham  v.  Kenyon,  76  Fed.  30 
Airhart  v.  Massieu,  984  S.  491 
Phillips  V.  Moore,  100  U.  S.  208 
Racouillat  v.  Sansevain,  32  Cal 
376;    Dudley   v.    Grayson,    6    T.    B 


Mo.  53;  Stamm  v.  Bostwick,  122 
N.  Y.  48;  9  L.  R.  A.  597;  Hannon 
V.  Hounihan,  85  Va.  429. 

8  (Devise     included.)       Ryan     v. 
Egan,    156    111.    224;    Jele   v.    Lem- 


'Mon.    (Ky.)    259;   Crane  v.   Reeder,  berger,   163  111.   338;   JVToier  v.  Lee, 

21  Mich.  24;  Lenehan  v.  Spaulding,  106  lo.  303;   DeGraff  v.  Went,   164 

57   Vt.    115;    Keenan   v.   Keenan,   7  111.   485;    Furenes  v.   Mickelson,   86 

Rich.  ( S.  Car. )   345.  lo.  508 ;   Burrow  v.  Burrow,  98  lo. 

6  Craig  V.   Leslie,   3   Wheat.    (U.  400. 
S.)    563;   Evans's  Appeal,  51   Conn.  9  Burrow  v.   Burrow,   98  lo.  400: 

435;   Greenheld  v.  Morrison,  21   lo.  Opel  v.  Shoup,  100  lo.  407:  Adanw? 

538;    Harney    v.    Donohue,    97    Mo.  v.  Akerlund,  168  111.  632 :  Scharpf  v. 

141.  Schmidt,  172  111.  255:  Rixner's  Suc- 

7De  Geofroy  v.  Riggs,  133  U.  S.  cession,  48  La.  Ann.  552;   32  L.  R. 

258;    Nicrosi    v,    Phillipi,    91    Ala.  A.  177. 
299 ;    L^tasey   v.    Giedinghagen,    132 


172  LAW    OF    WILLS. 

a  naturalized  citizen.^  ^  In  ^ew  York  descendants  of  women 
who  were  born  in  this  country,  but  have  married  aliens,  and 
reside  in  a  foreign  country  are  excepted  from  the  general  rule 
of  their  statutes  that  aliens  can  not  take  real  estate."  In 
other  jurisdictions  while  aliens  can  take  land  they  are  bound 
to  sell  it  within  three  years  and  withdraw  the  proceeds.^ ^ 

§152.     Private  corporations. — General  rule. 

Under  the  Endish  Statutes  of  Mortmain,  corporations  were 
forbidden  to  acquire  realty.  The  Wills  Act  expressly  excepted 
from  its  provisions  devises  to  corporations.  There  was  at 
English  law  no  authority  to  the  corporation  to  take  by  devise, 
or  to  hold  what  it  might  acquire  otherwise. 

A  similar  statute  was  once  in  force  in  South  Carolina,  un- 
der which  a  corporation  could  not  take  by  will.^^  This  statute 
was  modified  in  1872  by  omitting  the  words  "except  to  bodies 
politic  and  corporate"  from  the  Wills  Act.  Since  that  time 
a  corporation  has  been  able  to  take  by  will.^*  In  the  United 
States  such  provisions  are  rare.  The  Statutes  of  Wills,  in 
force  in  the  different  states,  do  not  except  devises  to  corporations 
from  their  general  terms;  and  it  is  held  that  in  the  absence 
of  an  express  prohibition  in  the  charter  of  the  corporation, 
or  in  the  general  laws  on  the  subject  of  corporations,  a  cor- 
poration may  acquire  realty  by  devise  as  a  natural  person 
might.^*^ 

loFurenes   v.    Severtson,    102    lo.  290:    19  L.  R.  A.  90;    36  Am.   St. 

322;    Doehrel    v.    Hilmer.    102    lo  Kep.  432. 

169;  Bennett  v.  Hibbert,  88  lo.  154  1 3  American      Bible      Society      v. 

55  N.  W,  93;  Wilcke  v.  Wilcke,  102  Noble,   11   Rich.  Eq.    (S.   Car.)    156 

To.    173;    Schultze  v.  Schultze,    144  i*  Mcintosh     v.     Charleston,     451 

111.  290;  36  Am.  St.  Rep.  432;  19  L.  S.  Car.  584. 

R.  A.  90;  Furenes  v.  Severtson,  102  is  White  v.  Keller,  68  Fed.  796; 

To.  322.     On  the  same  point  Easton  White   v.    Howard,    38    Conn,    342: 

V.   Huott,  95   lo.  473;    31   L.  R.  A.  Moore    v.    Moore,    4    Dana,     u^y-) 

177.  354;     American     Bible     Society    v. 

11  McGillis  \.  McGillis,  154  N.  Y.  Marshall,    15   O.   S.   537  ;    Mcintosh 
532.  V.   Charleston,   45   S.   Car.   584. 

12  Schultze    V.    Schultze,    144    111. 


LAW    OF    WILLS.  ^'^ 

§153.  Private  corporations.— Special  statutory  and  constitu- 
tional provisions. 
In  some  states  specific  statutory  or  constitutional  provisions 
alter  this  rule.  Thus,  in  Maryland,  a  devise  to  a  religious 
corporation  is  invalid  by  constitutional  provision  unless  the 
legislature  specifically  sanctions  such  devise.^  "^  And  a  grant 
to  receive  'subscriptions  and  contributions'  is  not  a  power  to 

receive  a  devise.^ '^ 

A  devise  to  an  unauthorized  corporation  is  void,  and  tlie 
heirs  may  take  advantage  of  its  invalidity.^^  But  these  pro- 
visions apply  only  to  Maryland  corporations.  A  devise  by  a 
Marvland  testator  to  a  foreign  corporation,  if  valid  otherwise, 
is  not  made  invalid  by  these  provisions.!^  In  New  York  it 
is  provided  by  statute  that  no  devise  to  a  corporation  is  valid 
unless  it  is  expressly  authorized  by  its  charter  or  by  statute 
to  take  by  devise.  This  statute  is  strictly  local  in  its  appli- 
cation. It  applies  to  devises  by  a  New  York  testator  to  a 
foreign  corporation,^^  but  it  does  not  forbid  a  devise  of  foreign 
land  by  a  foreign  testator  to  a  New  York  corporation.^^ 

In  some  states  it  is  provided  that  certain  corporations  can 
not  hold  real  estate  to  a  value  in  excess  of  a  specified  sum. 
Where  this  restriction  is  imposed,  an  important  question  is 
raised  by  a  devise  to  such  corporation  which,  with  the  prop- 
erty already  owned  by  it,  will  amount  altogether  to  more 
than  the  vahie  limited  by  statute.  In  some  states  it  is  held 
that  such  a  devise  is  void  as  to  such  excess  f^  and  the  capacity 
of  the  corporation  to  take  is  determined  by  the  capacity  of  the 
corporation  to  take  at  testator's  death.  If  the  devise  was  in 
excess  of  the  amount  which   it  could  then  lawfully  hold,   a 

16  Church  V.   Smith,   56  Md.    362.  Starkweather  v.  American  Bible  So- 

17  Brown  v.  Tompkins,  49  Md.  423.  ciety,  72  111.  50. 

18  See  cases  cited  in  the  two  pre-  22  Starkweather    v.    Amer.    Bible 
ceding  notes.  Soc.   72   111.    50;    McGraw's   Estate, 

19  Vansant  v.  Roberts,  3  Md.  119;  111  N.  Y.   66;   Coggeshall  v.  Home 
Brown  v.  Thompkms,  49  Md.  423.  for  Friendless  Children,  18  R.  1.696; 

20  Scott  V    Ives,   51   N.  Y.   S.   49.       31    Atl.    694;    Wood    v.    Hammond, 
2iAmericanBibleSociety  V.  Mar-       16    R.    I.    98;    House    of   Mercy   v. 

shall,   15   0.   S.    537 ;    Thomf)son   v.       Davidson,  90  Tex.  529. 
Swoope,  24    Pa.    St.    474;     contra 


174  1.AW    OF    WILLS. 

subsequent  amendment  to  the  charter  of  the  corporation,  in- 
creasing such  amount,  can  not  give  validity  to  such  devise.-^ 
But  a  devise  to  a  corporation  in  trust  for  certain  designated 
beneficiaries  is  not  avoided  by  the  fact  that  the  devise  is  in 
excess  of  the  amount  which  the  corporation  may  hold.^'*  In 
other  states  a  devise  to  a  corporation  in  excess  of  the  amount 
which  it  is  allowed  to  hold,  is  held  to  be  a  perfectly  valid  de- 
vise, and  one  which  the  heirs  can  not  defeat.  Only  the  gov- 
ernment by  a  direct  proceeding  can  take  advantage  of  the  fact 
that  the  corporation  is  holding  in  excess  of  the  legal  amount.^^ 

§154.     Public  corporations. 

In  the  absence  of  special  restrictions  a  devise  to  a  public 
corporation  is  valid,^*^  and  the  city  in  such  case  may  establish 
a  board  of  managers  for  such  fund.^^  The  state  may  be  a 
beneficiary  under  a  will,^^  or  so  may  an  unincorporated  state 
university.^^ 

Whether  the  United  States  may  take  property  by  devise 
is  a  question  upon  which  the  courts  are  at  variance.^ ^ 

§155.     Convicts. 

A  convict  may  be  a  beneficiary  under  a  will  at  modern 
law.^^ 

23  Coggeshall  V.  Home  for  Friend-  160  Mass.  431;  Carder  v.  Fayette 
less  Children,  18  R.  I.  696;  31  Atl.       County,  16  O.  S.  353. 

694.     To   the   same   eflfect  is  White  27  Quincy  v.  Attorney  General,  160 

V.  Howard,  46  N.  Y.  144.  Mass.  431.      (In  this  case  the  board 

24  Heiskell  v.  Chickasaw  Lodge,  87  was  made  up  of  certain  officials  and 
Tenn.  668.  one  private  citizen.) 

25  Jones  V.  Habersham,  107  U.  S.  28  in  re  President  and  Fellows  of 
174;  Farrington  v,  Putnam,  90  Me.  Yale  University,  07  Conn.  257. 
405;'  37   Atl.   652;    Stickney's  Will,  29  Royer's    Estate,    123    Cal.    614; 
85    Md.     79;     35    L.    R.    A.     693;  56   Pac.   461. 

De  Camp  v.  Dobbins,  29  N.  J.  Eq.  so  A  devise  to  the  United   States 

36.     See  Sec.  36.  was   upheld   in   Dickinson   v.   U.    S. 

26  Mcintosh   v.   Charleston,   45   S.  125,  Mass.  311,  and  was  held  invalid 
Car.    584;    Sheldon   v.    Stockbridge,  in  Fox's  \^'ill,  52  IST.  Y.  530;  U.  S. 
67    Vt.    299;    Beurhaus   v.    City    of  v.  Fox,  94  U.  S.  315. 
Watertown,  94  Wis.  617:   69  N".  W.  si  La  Chapelle  v.  Burpee,  69  Hun, 
986;    Quincy   v.    Attorney    General,  436;   Kenyon  v.  Saunaers,  18  R.  I. 

590. 


LAW     OF     WILLS.  175 

§156.     Illegitimate  children. 

Apart  from  the  power  of  testator  to  disinherit  his  legitimate 
children  in  favor  of  his  illegitimate  children,  a  question  arises 
as  to  the  capacity  of  illegitimate  children  to  take  under  a 
will  in  any  event.  If  the  illegitimate  child  to  whom  the  de- 
vise is  made  is  in  existence  when  the  will  is  executed  and  is 
so  clearly  described  in  the  will  that  the  law  recognizes  it  as 
the  intended  beneficiary,  there  is  no  question  of  its  capacity 
to  take  the  devise.^^  By  statute  in  Louisiana,  however,  it  is 
provided  that  illegitimate  children  may  claim  'alimony'  from 
the  estate  of  the  deceased  father ;  and  it  is  held  that  this  pro- 
vision for  them,  independent  of  the  will,  prevents  testator  from 
making  any  other  or  further  provision  for  them  by  will.^^ 
If  the  illegitimate  child  is  not  in  existence  when  the  will  is 
executed,  and  is  described  in  the  will  as  an  illegitimate  child 
to  be  born,  a  serious  question  arises  as  to  its  capacity  to  take. 
On  the  one  hand  if  the  description  is  sufficiently  accurate,  some 
courts  are  strongly  inclined  to  hold  the  gift  as  a  valid  pro- 
vision for  those  unfortunates,  who  are  disgraced  without  fault 
of  their  own,  and  to  whose  disgrace  the  law  ought  not  to  add 
the  further  disadvantage  of  forbidding  its  father,  who  is  legally 
bound  in  his  lifetime  for  its  support,  to  provide  for  it  after 
his  death. 

Accordingly,  it  is  held  in  some  cases  that  where  the  actual, 
though  not  of  course  the  technical,  father  makes  provision 
by  will  for  his  future  born  illegitimate  children,  describing 
them  with  sufficient  certainty,  such  devise  will  be  upheld.'"^* 
Such  children  can  be  described  with  sufficient  certainty  by 
designating  them  as  the  illegitimate  children  of  the  designated 


3-  Savage   v.   Robertson,    L.    R.    7  Mass.   472 ;    Heater   v.   Van   Auken, 

Eq.   176;   Owen  v.   Bryant,   13  Eng.  14  X.  J.  £q.   159. 

L.  &  Eq.  217;   Hill  v.  Crook,  L.  R.  33  Bennett   v.   Cane,    18   La.   Ann. 

6  H.  L.  265 ;  In  re  Walker   ( 1897 ) ,  590 :    Gaines    v.    Hennen,    24    How. 

2  Ch.  238;   In  re  Harrison    (1894),  (U.   S.)    553. 

1  Ch.  561 ;   Dunlap  v.  Robinson,  28  34  Oecleston  v.   Fullalove,  L.  R.  9 

Ala.   100;    Hughes  v.   Knowlton,   37  Ch.   147;   In  re  Bolton,  31  Ch.  Div. 

Conn.  429;   Smiiii  v.   Du  Brose,  78  542. 
Ga.    413:    Hayden    v.    Barrett,    172 


176  LAW     OF     WILLS. 

motlier.^^  Possibly  such  children  may  be  sufficiently  desig- 
nated by  describing  them  as  those  who  may  be  the  'reputed 
children'  of  testator  at  the  time  of  his  death.^^  But  they  cau 
not  be  properly  described  as  his  'children/  for  technically 
speaking,  illegitimate  children  are  not  recognized  in  law  as 
having  a  'father,'  but  at  the  best,  only  a  'reputed  father.'  ^'^ 

In  the  early  cases,  where  others  than  the  parents  provide 
by  will  for  future  bom  illegitimate  children,  the  courts  have 
been  even  more  unwilling  to  alloAv  such  a  disposition  of  prop- 
erty no  matter  how  clear  the  intent,  than  where  the  parents 
make  such  provision.  Some  of  the  strongest  considerations  for 
upholding  devises  by  the  parents  are  lacking.  The  testator 
is  not  ful tilling,  after  his  death,  a  duty  which  rested  uj^on  him 
during  his  lifetime.  A  third  person  is  making  a  disposition 
of  his  property  which  will  prove  ineffective  pro  tanto,  unless 
future  unlawful  sexual  intercourse  on  the  part  of  the  desig- 
nated mother  results  in  the  birth  of  illegitimate  children. 
Under  the  old  rule,  and  especially  in  England,  it  has  been 
held  accordingly  that  a  devise  by  one  not  a  parent  of  the  bene- 
ficiary to  a  future  born  illegitimate  child,  is  void. 

The  early  cases  upon  which  these  propositions  are  based 
are  cases  in  which  the  will  or  deed  was  in  pursuance  of  a  con- 
tract, one  provision  of  which  was  that  the  parents  of  the  il- 
legitimate children  should  continue  to  live  in  unlawful  sexual 
relations.  Such  contracts  are,  of  course,  contrary  to  public 
policy,  illegal  and  void.  Oat  of  their  hostility  to  such  con- 
tracts grew  the  unwillingness  of  the  courts  to  allow  devises 
to  future-born  illegitimates. 

The  modern  cases,  however,  are  much  more  liberal  toward 
devises  to  the  illegitimate,  than  the  earlier  line  of  English 
cases.  It  seems  now  to  be  held  in  every  case  that  it  is  a  ques- 
tion of  the  intention  of  the  testator.  If  testator  describes  the 
beneficiary  with  sufficient  accuracy,  and  makes  it  clear  that 
he  means  to  provide  for  the  future-born  illegitimate,  the  law 


35  Oceleston  v.  Fullalove,  L.  K.  9  36  Occleston  v,  Fullalove,  L.  R.  9 

Ch.  147;   In  re  Bolton,  31  Ch.  Div.       Ch.    147. 
542.  '  37  Jn  re  Bolton,  31  Ch.  Div.  542. 


LAW    OF    WILLS. 


177 


does  not  now  in  most  jurisdictions  forbid  such  a  disposition 
of  projjertj,  even  where  one  not  the  parent  of  such  children 
provides  for  future  born  illegitimates.^'^ 

The  policy  now  adhered  to  is  "the  more  humane  policy  of 
the  civil  law,  a  policy  which  considers  justice  to  the  innocent 
as  outweighing  the  controlling  idea,  so  called,  of  the  common 
law,  the  discouragement  of  illegitimacy."  ^^ 

In  other  jurisdictions  other  restrictions  have  from  time  to 
time  been  imj)osed  upon  devisees,  which  have  been  so  local  as 
not  to  call  for  extended  discussion.  Thus,  under  some  early 
statutes  giving  a  married  woman  power  to  make  a  will  it  was 
provided  that  she  could  not  devise  property  to  her  husband."*'-* 

These  statutes  have  for  the  most  part  been  so  modified  by 
subsequent  legislation  as  to  permit  a  married  woman  to  de- 
vise to  her  husband  if  she  wishes. 

33Hayden   v.   Barrett,    172   Mass.  30  SchoH's  Will,  100  Wis.  650. 

472;  Sullivan  v.  Parker,  113  N.  Car.  4o  Wakefield,  v,  Phelps,   37   N.  H. 

301 ;  Heater  v.  Van  Auken,  14  N.  J.  295. 
Eq.  159;  Scholl's  Will,  100  Wis.  050. 


1T8  LAW    OF    WILLS. 


CHAPTER  XII. 


EXTRINSIC  ELEMENTS  OF  A  WRITTEN  WILL  OF  THE 
ORDINARY  TYPE. 

Part  I — Introduction. 
§157.     History  of  the  Law  of  the  Extrinsic  Elements  of  Wills. 

As  to  their  extrinsic  elements,  as  distinguished  from  the 
inherent  elements,^  wills  may  be  divided  into  written  and 
nnncnpative  or  oral.  Written  wills  again  may  be  divided  into 
written  wills  of  the  ordinary  type,  holographic  wills,  mystic 
wills,  and  nuncupative  wills  under  the  Louisiana  Code.  In 
this  chapter,  after  a  general  discussion  of  the  history  of  the 
law  of  the  extrinsic  formalities  of  wills,  and  the  general  place 
and  scope  of  modern  statutes  upon  the  subject  of  formalities, 
a  detailed  discussion  of  the  extrinsic  elements  of  a  written 
will  of  the  ordinary  tA^e  will  follow,  leaving  the  topics  of  the 
holographic  will,  the  mystic  will,  and  the  nuncupative  will  for 
further  discussion.^ 

In  tracing  the  gradual  development  of  the  law  of  the  ex- 
trinsic elements  of  a  valid  mil  or  testament,  a  sharp  distinc- 
tion must  l)e  made  between  the  history  of  the  law  of  wills  and 
that  of  testaments. 

The  Statute  of  Wills,  32  Hen.  VITI,  c.  I,  Sec.  2,  which 
created  the  right  of  making  a  will  of  lands,  provided  that 
specified  interests  in  realty  could  be  devised  by  their  o^vner  "bv 

1  See  Sec.  42.  2  See  Ch.  XIII. 


LAW     OF    WILLS.  179 

his  last  will  or  testament  in  writing."  ISTo  further  fonnalities 
were  imposed  by  this  statute/"' 

The  first  formalities  in  addition  to  the  requirement  of  a 
writing  were  imposed  upon  devises  of  realty  by  the  Statute 
of  Frauds,  29  Car.  II,  c.  3,  Sec.  5,  which  provided  that  devises 
of  land  "shall  be  in  writing  and  signed  by  the  party  so  de- 
vising the  same,  or  by  some  other  person,  in  his  presence,  and 
by  his  express  direction,  and  shall  be  attested  and  subscribed 
in  the  presence  of  the  said  devisor  by  three  or  four  credible 
witnesses,  or  else  they  shall  be  utterly  void  and  of  no  effect."  "■- 
The  further  formalities  required  by  the  later  statutes  (the 
chief  of  which  is  that  the  will  must  be  signed  at  the  end)  are 
discussed  under  their  respective  headings.^ 

Testaments  were  governed  by  the  ecclesiastical  law.  Orig- 
inally the  ecclesiastical  courts  enforced  even  the  oral  wishes  of 
the  decedent;  but  in  course  of  time  oral  wishes  were  enforced 
only  in  certain  specified  cases.^  The  testament,  except  in  the 
cases  where  a  nuncupative  will  was  enforced,  was  required  to 
be  in  writing,  ^o  further  formalities  were  required.  If  testa- 
tor assented  to  the  instrument  it  was  .not  necessary  that  he  sign 
it,^  or  that  it  be  subscribed. by  attesting  Avitnesses.^     It  was  not 

3  See  Sec.  15,  note.  See  Part  II,  and  following  parts 

4  29   Car.   11,   e.   3,   Sec.   5:    "and       of  this  chapter. 

be    it    further    enacted    by   the    au-  6  See      Ch.      XIII,      Nuncupative 

thority    aforesaid.    That    from    and  Wills, 

after   the   said   four   and   twentieth  7  Frierson    v.    Beall     7    Ga.  438  • 

day    of    June     (1677)      all    devises  Mealing  v.  Pace,  14  gL  596;  Watts 

and  bequests  of  any  lands  or  tene-  v.    Public    Administrator,    4    Wend, 

ments,  deviseable  either  by  force  of  168;    McLean   v.    McLean,    6   Himi. 

the  statute  of  wills,  or  by  this  stat-  (Tenn.)   452. 

ute,   or   by   force   of   the   custom   of  &  Ex   parte   Henry,   24   Ala.    638; 

Kent  or  the  custom  of  any  borough,  Frierson  v.  Beall,  7  Ga.  438 ;  Watts 

or    any    other    particular    custom,  v.    Public    Administrator,    4    Wend, 

shall  be  in  writing,  and   signed  by  (N.    Y.)     168;    Johnson    v.    Fry,    1 

the  party  so  devising  the  same,  or'  Cold.  (Tenn.)  10;  Morris  v.  Swaney, 

by  some  other  person  in  his  presence  7   Heisk.    (Tenn.)    591. 

and  by  his   express  directions,   and  It    is,   of    course,    necessary   that 

shall  be  attested  and  subscribed  in  witnesses   be   called   to   show   testa- 

the  presence  of  the  said  devisor  by  tor's  assent  to  the  will ;  though  they 

three  or  four  credible  witnesses,  or  need     not     subscribe.       Suggett     v. 

else  they  shall  be  utterly  void  and  Kitchell,    6    Yerger     (Tenn.)     425; 

of  no  effect."  Moore  v.   Steele,   10   Hum.    (Tenn.) 

562. 


180  LAW     OF     WILLS. 

necessary  that  the  testament  be  a  holograph,  that  is,  in  testator's 
handwriting.  An  unsigned  paper,  not  in  testator's  handwriting, 
and  not  sigTied  by  him,  could  be  probated  as  his  testament  if 
the  evidence  showed  that  he  intended  it  as  his  testament.* 
The  Statute  of  Frauds,  already  quoted,^  *^  did  not  affect 
testaments.  The  danger  of  fraud  in  the  informal  instruments, 
which  were  upheld  by  the  courts,  became  so  evident  that  stat- 
utes were  passed  in  England  in  the  first  half  of  the  nineteenth 
century,^  ^  and  in  the  different  states  .of  this  country  at  dif- 
ferent dates,  in  many  cases  earlier  than  the  date  of  the  English 
statute,  imposing  upon  testaments  of  personalty  substantially 
the  formalities  requisite  to  a  will  of  lands.  The  original  free- 
dom of  wills  and  testaments  from  set  formalities  persisted 
longer  as  to  testaments  of  personalty  than  as  to  wills  of 
realty.-^ ^  Indeed,  in  some  jurisdictions  testaments  of  per- 
sonalty are  still  less  formal  instruments  than  wills.-^^ 

§158.     General  scope  of  modern  statutes. 

An  instrument  may  possess  all  the  inherent  elements  of  a 
will,  and  yet  be  of  no  effect  in  law,  because  it  lacks  some  of 
the  additional  requisites  which  are  classified  here  as  extrin- 
sic formalities.  These  formalities  are  added  by  statute.  In 
every  case  therefore  the  question  of  the  validity  of  the  will, 
apart  from  its  inherent  elements,  depends  upon  the  construc- 
tion of  the  statute  by  which  such  formalties  are  required. 
The  discussion  of  the  subject  is  somewhat  simplified  by  the 
disposition  of  American  states  to  adopt  the  statute  law  of 
England,  or  of  the  other  states  of  the  Union,  rather  than  to 
make  new  statutes  based  on  original  principles.  The  cases 
may,  therefore,  be  arranged  in  groups  which  are  decided  under 
similar  statutes  and  which  are  not  opposed  in  principle  by 
other  classes  decided  under  diverse  statutes,  though  they  should 

9  McLean  v.  McLean,  6  Hum.  452.       Hunt  v.  Hunt,  4  N.  H.  434 ;   Gage 

10  29   Car.  II,  c.   3,  Sec.  5.  v.  Gage,  12  K  H.  371;  Marston  v. 

11  1  Vict.  c.  26,  Sec.  9.  Marston,  17  N.  H.  503. 

12  Very  v.  Very,  3  Pick.  374;  isVestry  of  St.  John's  Parish  v. 
Bartlett  v.  Monroe,  21  Pick.  98;  Bostwick,  8  App.  D.  C.  452;  Orgain 
Kendall  v.   Kendall,  24   Pick.   217:  v.  Irvine,  100  Tenn.  193. 


LAW    OF    WILLS.  1^1 

be  carefully  distinguished  from  them.  These  statutes  are  ex- 
clusive by  their  terms  since  they  provide  substantially  that 
no  will  shall  be  of  any  effect  unless  made  in  compliance  with 
them.  Since  the  legislature  has  full  power  to  provide  for  the 
form  and  validity  of  wills/ ^  it  follows  that  these  statutes 
must  be  substantially  complied  with  or  the  will  will  be 
invalid. ^^ 

A  will  can  only  be  either  valid  as  complying  with  the  stat- 
ute, or  void  as  in  disregard  of  it.^*'  The  formalities  required 
by  statute  may  be  classified  as :  Writing,  signature  by  testator 
tor,  competency  of  witnesses,  attestation  and  signature  by 
witnesses,  and,  in  some  states,  publication. 

Part  II— Writing:. 

§159.     Writing  materials  which  can  be  used. 

Under  the  different  codes  a  will,  with  the  exception  of  the 
nuncupative  will,  must  be  in  writing.  Verbal  additions  can 
not  alter  a  written  will.^^  It  is  generally  held,  in  the  absence 
of  special  statutory  requirements,  that  any  material  which  can 
be  used  to  write  upon  may  be  used.^^  As  to  the  material  with 
which  the  writing  is  done,  ink  is,  of  course,  the  best  at  our 
disposal.  This  may  be  applied  with  a  pen,  as  in  ordinary 
writing,  or  the  will  may  be  printed  or  lithographed  or  type- 
written. "Writing  includes  printing."  ^^  It  may  be  written 
also  in  lead  pencil.^*^     But  it  has  been  held  that  a  will  written 

i*See  Sec.  21  Barker  v.  Bell,  46  McFadin   v.    Catron,    120   Mo.    252; 

Ala.  216.  Smith  v.  Smith,  54  N.  J.  Eq.  1. 

15  Walton  v.  Kendrick,  122  Mo.  is  Rymes  v.  Clarkson,  1  Phill.  22. 
504;  Catlett  v.  Catlett,  55  Mo.  330;  i9  Henshaw  v.  Foster,  9  Pick.  312. 
Simpson  v.  Simpson,  27  Mo.  288;  _  Roush  v.  Wensel,  15  O.  C.  C.  133; 
St.  Louis  Hospital  Association  v.  Temple  v.  Mead,  4  Vt.  535. 
Williams,  19  Mo.  609 :  Voorhis's  20  Harris  v.  Pue,  39  Md.  535 ; 
Will,  125  N.  Y.  765 ;  Luper  v.  Werts,  Myers  v.  Vanderbilt,  84  Pa.  St. 
19   Ore.    122.  510;    Knox's    Estate,    131    Pa.    St. 

16  "We  know  nothing  about  'void-  220;  Tomlinson's  Estate,  133  Pa. 
able  wills'."  McGee  v.  Porter,  14  St.  245;  Bell  Co.  v.  Alexander,  22 
Mo.  611.  Tex.  350. 

"Knight  V.  Tripp,  121  Cal.  674; 


182  LAW     OF    WILLS. 

on  a  slate  is  so  easy  to  alter  that  it  should  not  be  recognized 
as  a  valid  will.^^  This  seems  to  add  to  the  requirements  of 
the  statute  by  judicial  construction. 

§160.     Language  in  which  the  will  may  be  written. 

The  will  may  be  written  in  any  language.  It  is  not  neces- 
sary that  it  be  in  English  f^  nor  that  it  be  in  a  language  with 
which  the  testator  is  acquainted.^** 

Under  the  doctrine  of  animus  testandi,  however,  the  testa- 
tor must  know  the  nature  of  the  act  which  he  is  performing; 
and  the  fact  that  the  will  is  drawm  up  in  a  language  which 
he  does  not  understand  may  be  important  as  showing  that  he 
did  not  execute  the  instrument  animo  testandi.^'^ 


§161.     "Writing  on  several  pieces  of  paper. 

Under  statutes  which  require  that  a  will  be  in  writing  a 
will  may  be  written  upon  several  pieces  of  paper.^^  The  will 
is  valid  even  where  testator's  signature  is  on  a  piece  of  paper 
separate  from  the  dispositive  clauses  of  the  will.^^     It  is  not 

21  Reed   v.    Woodward,    11    Phila.  lington,  174  Pa.  St.  187;  Ginder  v. 

(Pa.)   541.  Farnum,    10    Pa.    St.    98;    Wikoff's 

22 /n    re    Cliff's    Trusts     (1892),  Appeal,    15    Pa.    St.    281;    Gass    v. 

2  Ch.  Biv.  229.  Gass,  3  Hump.    (Tenn.)    278. 

23  Hoshauer  v.  Hoshauer,  26  Pa.  "It  is  not  necessarily  an  objec- 
St.  404;  Dickinson  v.  Dickinson,  61  tion  to  a  will  that  it  is  written  on 
Pa.  St.  401 ;  Walter's  Will,  64  Wis.  several  separate  pieces  of  paper. 
487.  Such  fact  is  not  fatal  to  the  validity 

24  Miltenberger  v.  Miltenberger,  of  the  will.  All  that  is  required  is, 
78  Mo.  27;  8  Mo.  App.  306.  (In  that  all  the  separate  sheets  of  paper 
this  case  there  was  no  proper  execu-  should  be  in  the  room  and  in  the 
tion ;  as  the  evidence  tended  to  show  presence  of  the  attesting  witnesses." 
that  testatrix  did  not  understand  Harp  v.  Parr,  168  111.  459,  citing 
the  .legal  effect  of  the  transaction.)  Bond  v.  Sea  well,  3  Burr.  1773;  Ela 

25  Bond  v.  Seawell,  3  Burrows,  v.  Edwards,  16  Gray,  (Mass.)  91; 
1773;  Barnewall  v.  Murrell,  108  Wikoff's  Appeal,  15  Pa.  St.  281; 
Ala.  366;  St.  John's  Parish  v.  Bost-  Gass  v.  Gass,  3  Hump.  (Tenn.) 
wick,   8   App.   D.   C.   452;    Jones  v.  278. 

Habersham,    63    Ga.    146;    Harp    v.  26  Cook  v.  Lambert,   3  Sw.  &  Tr. 

Parr,  168  111.  459;  Ela  v.  Edwards,  46;   32  L.  J.  P.  93;   9  Jur.    (K  S.) 

10  Gray.    (Mass.)    91;    Burnham  v.  258;  9  L.  T.  211;   11  W.  E.  401- 
Porter,  24  N.  H.  570 ;  Grubb  v.  Dar- 


LAW    OF    WILLS. 


183 


necessary  that  these  papers  be  fastened  together  if  their  sense 
connects  them  each  one  with  the  preceding.-^ 

A  will  written  on  separate  pieces  of  paper,  with  but  one 
paragraph  on  some  of  the  pieces,  and  with  blank  spaces  at 
the  top  and  bottom  of  each  piece,  was  held  to  comply  with 
the  statute.  In  this  case  the  papers  were  sewed  together  with 
thread.^^ 

The  i3resumption  is  that  the  will  was  executed  in  the  form 
in  which  it  is  found  to  exist  at  the  death  of  the  testator.*^  This 
presumption  may  be  rebutted,  and  it  may  be  shown  that  sheets 
of  paper  have  been  destroyed,  rewritten  or  transposed.^ ^  In 
such  case  the  will  as  it  was  executed  is  the  valid  one, 
unless  the  changes  have  amounted  to  such  revocation  as 
invalidates  the  will  in  whole  or  in  part.^^  Still  more  is  a 
will  valid  which  is  written  upon  two  sheets  of  paper  pasted 
together  so  that  testator's  signature  came  just  below  the  line 
of  union. ^^ 

§162.     Incorporation  of  documents. 

From  the  proposition  that  a  will  may  be  written  upon  dif- 
ferent pieces  of  paper  connected  only  by  the  sense  it  follows 
that  a  will  may  by  reference  incorporate  into  itself  as  com- 
pletely as  if  copied  in  full  some  other  paper  which  in  itself 
is  not  a  will  for  lack  of  execution.^^  In  order  so  to  incor- 
porate, three  things  are  necessary. 

27WikoflF's    Appeal,     15    Pa.    St.  Estate,  67  Cal.  585 ;  Young's  Estate, 

281;     Martin   v.   Hamlin,   4   Strobh  123  Cal.  337  ;  Wiley's  Estate  (Cal.). 

(S.   Car.)    188.  56  Pac.  550;  Newton  v.  Society,  etc., 

28  Barnewall  v.  Murrell,  108  Ala  130  Mass.   91;    Smith  v.   Smith,   54 

366.  X.  J.  Eq.  1 ;  Tonnele  v.  Hall,  4  N.  Y. 

29Rees  V.  Rees,  L.  R.   3  P.  &  D.  140;     Gerrish    v.    Gerrish,    8    Ore. 

84 ;  Marsh  V.  Marsh,  1  S.  &  T.  .528 ;  351;    34    Am.    Rep.    585;    Ford    v. 

Barnewall  v.  Murrell,  108  Ala.  366.  Ford,  70  Wis.  10;  Skinner  v.  Amer- 

30  Varnon  v.  Varnon,  67  Mo.  App.  ican  P.ible  Society,  92  Wis.  209 ; 
534.     See  Ch.  XV.                                     ■  Mortgajxe  Trust  Company  v.  Moore, 

31  See  Sees.  260  and  276.  150   Ind.    465;     Fesler   v.    Simpson, 

32  Lamb  v.  Lippencott,   115  Mich.  58  Ind.  83. 

611.  While  the  weight  of  authority  is, 

33  Shillaber's  Estate,  74  Cal.  144;  as  given  in  the  text,  it  was  queried 
5    Am.    St.    Rep.    433;      Skerrett's       in  Phelps  v.  Robbins,  40  Conn.  250, 


184 


LAW    OF    WILLS. 


1.  The  will  itself  must  refer  to  such  paper  to  be  incor- 
porated (a)  as  being  in  existence  at  the  time  of  the  execution 
of  the  will,^^  and  (b)  in  such  a  way  as  to  reasonably  identify 
such  paper  in  the  will,^^  and  (c)  in  such  a  way  as  to  show 
testator's  intention  to  incorporate  such  instrument  in  his  will 
and  to  make  it  a  part  thereof. ^"^  Thus  a  paper  placed  with  a 
will  is  not  a  part  thereof  where  the  will  shows  no  intention 
to  incorporate  it.^^ 

2.  Such  document  must  in  fact  be  in  existence  at  the  time 
of  the  execution  of  the  will.^^  If  this  were  not  the  rule  tes- 
tator could,  by  executing  a  will  and  incorporating  therein  a 
document  to  be  executed  in  the  future,  create  for  himself  a 
power  to  dispose  of  his  property  in  a  testamentary  manner 
by  an  instrument  not  executed  in  accordance  with  the  statute 
of  wills.^^ 

3.  Such   instrument   must    correspond    to   the    description 


if  incorporation  l\y  reference  is  pos- 
sible, and  it  was  observed  that  in 
Connecticut  no  case  of  the  sort 
had  been  presented  in  a  liundred  and 
fifty  years. 

And  in  Booth,  v.  Baptist  Church, 
126  X.  Y.  215,  the  court  said: 

"It  is  unquestionably  the  law  of 
this  state  that  an  unattested  paper 
which  is  of  a  testamentary  charac- 
ter can  not  be  taken  as  a  part  of 
the  will,  even  though  referred  to  by 
that  instrument." 

In  this  case  the  instrument  in 
question  was  referred  to  in  the  will 
thus:  "Among  my  papers  will  be 
found  a  memorandum  of  the  various 
securities  I  have  selected  for  the 
payment  of  the  several  lagacies." 
Among  his  papers  was  the  instru- 
ment referred  to,  headed  "List  of 
securities  which  I  wish  transferred 
to  different  institutions  under  my 
will  of  February,  1885."  and  signed 
by  testator.  The  codrt  held  that  it 
was  not  incorporated  in  the  will 
and  cited  and  followed  Langdon  v. 
Astor,    16    N.    Y.    9:     Williams    v. 


Freeman,   83   N.   Y.   561;     O'Neill's 
Will,  91  X.  Y.  516. 

34  Durham  v.  Northern  (1895), 
Prob.  66;  6  Rep.  582;  Goods  of 
Kehoe,  13  L.  E.  Ir.  13;  Smith  v. 
Smitli,  54  N.  J.  tq.  1.  But  it  is 
not  necessary  that  it  should  be 
present  when  the  will  is  executed. 
Willey's  Estate  (Cal.)  (1900),  60 
Pae.  471. 

35  Young's  Estate,  123  Cal.  337; 
Newton  v.  Society,  etc.,  130  Mass. 
91 ;  Chambers  v.  McDaniel,  6  Ired. 
Law  (N.  C.)  226;  Skinner  v.  Amer- 
ican Bible  Society,  92  Wis.  209. 

36  Young's  Estate,  123  Cal.  337; 
Magoohan's  Appeal,  117  Pa.  St. 
238;  Hunt,  ex  rel  v.  Evans,  134  111. 
496;  11  L.  R.  A.  185;  Zimmerman 
V.  Hafer,  81  Md.  347;  32  Atl.  316. 

37  Magoohan's  Appeal,  117  Pa.  St. 
238. 

38  St.  John's  Parish  v.  Bostwick, 
8   App.   D.   C.   452. 

39  Dennis  v.  Holsapple,  148  Ind. 
297;  Chase  v.  Stockett,  72  Md. 
235. 


LAW    OF    WILLS. 


185 


thereof  in  the  will  and  must  be  shown  to  be  the  instriunent 
therein  referred  to.^^ 

In  discussing  incorporation  by  reference  it  must  first  be 
observed  that  these  three  requisites  must  co-exist  in  order  to 
incorporate  a  foreign  paper  into  the  will.  The  absence  of  any- 
one of  them  will  prevent  suth  incorporation. 

§163.     Incorporation  of  documents. — Reference  to  document. 

The  will  must  refer  to  the  instrument  to  be  incorporated 
as  in  existence.  A  reference  in  the  will  to  the  instrument 
incorporated  as  "made  or  to  be  made"  does  not  refer  to  it 
clearly  as  being  in  existence  ;^^  nor  does  a  reference  to  it  as 
a  schedule  of  property  "hereafter  named."  ^^  Since  the  doc- 
ument to  be  incorporated  must  be  referred  to  in  the  will  as 
in  existence  at  the  date  of  executing  such  will,  it  follows  that, 
in  the  absence  of  such  reference,  parol  evidence  is  not  admis- 
sible to  show  that  the  document  was  in  existence  at  the  time 
of  executing  the  will.^^ 

§164.     Incorporation  by  the  use  of  asterisks. 

The  testator  sometimes  indicates  by  the  use  of  asterisks,  or 
by  such  words  as  "See  next  page,"  that  a  clause  written  upon 
the  back  of  the  will,  following  the  signature  and  an  attestation 
clause,  is  to  be  considered  as  a  part  of  his  will.  In  some  ju- 
risdictions this  is  treated  as  a  part  of  the  will.^^  The  reason 
for  including  it  is  that  it  is  a  separate  document  incorporated 
into  the  will  by  reference.^^  An  additional  reason  has  been 
urged  that,  where  all  the  writing  is  upon  one  piece  of  paper, 
or  where  the  annexed  provisions  are  on  a  piece  of  paper  fas- 
tened to  the  will,  the  will  is  to  be  considered  as  signed  at  the 

40  Brown  v.  Clark,  77  N.  Y.  369;  43  Durham  v.  Northern  (1895), 
Baker's  Appeal,   107   Pa.   St.   381.  Prob.  6G :   6  Rep.   582. 

41  Dunham  v.  Northern  (1895),  44  i^  Goods  of  Thomas  Greenwood 
Prob.  G6:  6  Rep.  582:  In  re  Skair,  (1892),  P.  7 ;  66  L.  T.  61;  Goods 
5  No.  Cas.  57;  In  re  Astell,  5  No.  of  Brit,  24  L.  T.  R.  142;  Baker's 
Cas.  489»i.  Appeal.  107  Pa.  St.  381. 

42  Singleton  v.  Tomlinson,  3  App.  45  See  eaeee  under  last  note. 
Cas.  414. 


186  LAW    OF     WILLS. 

end  thereof.  On  this  theory  the  end  is  taken  as  the  end  in 
point  of  sense,  and  not  the  end  in  point  of  space,  and  the 
theory  of  incorporation  by  reference  is  unnecessary.'*®  Thus 
where  the  will  was  written  upon  a  piece  of  paper  so  folded 
as  to  make  four  pages  it  was  signed  on  page  three.  Above  the 
signature  appeared  "4th.     See  next  page."     Upon  the  fourth 

page  appeared  "4.     ,"  followed  by  a  bequest  to  A.     This 

clause  on  the  fourth  page  was  held  to  be  a  part  of  the  will 
upon  both  theories  suggested.'*'^ 

In  New  York  a  clause  so  referred  to  is  held  not  to  be  part 
of  the  will  on  the  ground  that  such  will  is  not  signed  at  the 
physical  end  thereof,  and  that  such  additions  are  not  so  de- 
scribed in  the  will  as  to  be  incorporated  by  reference."*^  Like- 
wise, where  the  dispositive  part  of  the  will  completely  filled 
the  blank  on  which  the  will  was  written  and  ended  with  the 
words  "Carried  to  back  of  will,"  and  on  the  back  appeared 

"Continued  ,"  followed  by  bequests  and  then  the  words 

"Signature  on  face  of  will,"  the  addition  was  held  not  to  be 
a  part  of  the  will,  and  the  whole  will  was  invalidated,  as  not 
being  signed  at  the  end  thereof.^^  So  there  was  a  similar 
holding  where  before  the  attestation  clause  appeared  the  words 
"See  annexed  sheet,"  and  a  piece  of  paper  with  dispositive  pro- 
visions was  fastened  to  the  will  by  metal  fasteners.^ *^ 

These  cases  are  in  direct  conflict.  The  Xew  York  courts 
attempt  to  distinguish  the  English  cases  on  the  ground  of  the 
different  language  of  their  respective  statutes,  but  no  such  dis- 
tinction can  be  urged  against  the  Pennsylvania  case,  which, 
with  statute  similar  to  that  of  Xew  York,  follows  the  English 
doctrine. 


46  Baker's    Appeal,    107    Pa.    St.  tary    provisions    not    authenticated 

381.  according  to  the  provisions  of  our 

4"  Baker's    Appeal,    107    Pa.    St.  Statute  of  Wills  has  yet  been  held 

381.  to  be  a  part  of  a  valid  testamentary 

*8  Sisters  of  Charity  v.  Kelly,  67  disposition   of   property   simply   be- 

N.  Y.  409 ;  Conway's  Will,  124  N.  Y.  cause    it    was    referred    to    in    the 

455;  Whitney's  Will,  153  X.  Y.  259;  body  of  the  will."     Conway's  Will, 

Andrew's  Will,  162  X.  Y.  1.  124  X.  Y.  455.  citing  O'Xeil's  Will. 

49  Conway's  Will,   124  X.  Y.  455.  91    X.    Y.    51G;    Hewitt's    Will,    91 

See  Sees.  182  and  186.  X.  Y.  261. 

"It  is  not  believed  that  any  paper  so  Whitney's  Will,  153  X.  Y.  259. 
or    document    containing    testamen- 


LAW    OF    WILLS.  187 

§165.     Actual  existence  of  document  at  time   of  execution   of 
will. 

The  reference  in  the  will  to  the  document  as  already  in  ex- 
istence is  not  conclusive.  It  must  be  sho\^Ti  further  that  the 
document  sought  to  be  incorporated  was,  in  fact,  in  existence 
at  the  time  of  the  execution  of  the  will.^^  Thus  where  the 
will  referred  to  a  document  as  in  existence  at  the  date  of 
executing  such  will,  and  the  evidence  showed  that  such  doc- 
ument was  not  completed  till  two  months  afterwards,  it  was 
held  that  such  document  was  not  to  be  treated  as  part  of  the 
will.^^  AVhere  the  document  referred  to  is  written  after  the 
will  is  executed,  even  if  immediately  thereafter  and  on  the 
same  day,  it  can  not  be  regarded  as  part  of  the  will.^^ 

§166.     Identification  of  document  to  be  incorporated. 

The  document  sought  to  be  incorporated  in  the  will  by 
reference  must  be  so  described  in  the  will  that  this  descrip- 
tion, together  with  evidence  of  the  identity  and  genuineness 
of  the  document,  will  be  sufficient  to  show  that  it  is  the  doc- 
ument referred  to  in  the  will.^^  If  the  will  is  drawn  in  such 
vague  or  inaccurate  terms  that  the  document  produced  can 
be  identified  with  that  mentioned  in  the  will  only  by  extrinsic 
evidence  dehors  the  will  or  contradicting  its  description,  such 
document  can  not  be  taken  as  a  part  of  the  will,  since  such 

61  Vestry  of  St.  John's  Parish  v.  Phelps  v.  Eobbins,  40  Conn.  250; 
Bostwick,  8  App.  D.  C.  452;  Thayer  Xewton  v.  Society,  130  Mass.  91; 
V.  Wellington,  9  Allen,  283;  Lang-  Allen  v.  Boomer,  82  Wis.  364. 
don  V.  Astor,  16  N.  Y.  9;  In  re  "Before  such  an  extrinsic  docu- 
Shillaber,  74  Cal.  144;  5  Am.  St.  ment  maybe  so  incorporated,  the  de- 
Rep.  433.  scription    of    it    in    the    will    itself 

52  Shillaber's  Estate,  74  Cal.  144 :  must  bo  so  clear,  explicit  and  un- 
5  Am.  St.  Rep.  433;  Vestry  of  St.  ambiguous  as  to  leave  its  identity 
John's  Parish  v.  Bostwick,  8  App.  free  from  doubt.  The  identification 
D.   C.  452.  of   the  paper   must  be  had   from   a 

53  Shillaber's  Estate,  74  Cal.  144;  description  given  in  the  will  itself; 
5  Am.  St.  Rep.  433,  otherwise  the  will  is  not  wholly  in 

54  Habergham  v.  Vincent.  2  Ves.  writing  as  our  law  requires,  but 
Jr.  228;  Allen  V.  Maddock,  11  Moore  rests  partly  upon  a  writing  and 
P.  C.  427;  Young's  Estate,  123  Cal.  partly  in  parol."  Young's  Estate, 
337;  Skerrett's  Estate,  67  Cal.  585;  123  Cal.  337. 


188  LAW    OF    WILLS. 

a  will  would  be  in  part  oral,  aud  hence  in  violation  of  the 
Statute  of  Wills.^^  Thus  a  direction  in  a  will  that  "two 
deeds"  shall  be  handed  to  the  husband  of  testatrix  upon  her 
death  does  not  so  identify  the  deeds  as  to  incorporate  them 
by  reference.  The  fact  that  the  deeds  were  placed  with  the 
will  does  not  supply  the  lack  of  identification;  nor  does  ex- 
trinsic evidence.^^  Where  the  will  referred  to  "the  enclosed 
papers  numbered  1,  2,  3,  4,  5  and  6/'  and  recited  that  such 
papers  were  signed  by  testator  in  the  presence  of  the  attesting 
witnesses,  it  was  held  that  these  papers  were  not  sufficiently 
identified,  especially  as  the  witnesses  did  not  see  the  papers 
sought  to  be  incorporated.^^  A  description  of  a  document  as 
"written  instructions  in  my  handwriting  to  be  left  with  my 
will"  was  held  insufficient  as  an  identification.^^ 

A  testator  by  will  provided  that  A  should  have  certain 
household  furniture,  "which  she  has  got  a  list  of."  A  pro- 
duced a  list  which  purported  to  be  a  list  of  goods  given  to 
her  son  B.  Such  list  was  held  not  to  be  a  part  of  the  will, 
since  it  could  be  made  a  part  only  by  extrinsic  evidence  con- 
tradicting the  description  in  the  will.^^  A  reference  to  "a 
deed  of  gift"  by  testator  to  his  son  is  not  such  description  as 
will  incorporate  the  deed.^°  But  inasmuch  as  no  written 
recitals  can  ever  prove  their  o^vn  genuineness,  a  document 
referred  to  in  a  will  may  be  incorporated,  even  though  ex- 
trinsic evidence  is  necessary  to  identify  the  document  referred 
to  by  showing  that  it  is  in  fact  the  document  described  in  the 
will.  The  fact  that  the  description  of  the  document  given  in 
the  will  is  not  so  exhaustive  as  to  make  identification  unneces- 
sary is  therefore  no  objection  to  incorporating  an  extrinsic 
document,  as  such  description  would  be    practically    impossi- 

csMardmnt's    Estate    (1893),   P.  57  Garnett's  Estate  (1894),  P.  90. 

254;      Smart    v.    Prujean,    6    Ves.  ss  phdps    v.    Robbing,    40    Conn. 

Jr.  560;    Habergham  v.  Vincent,  2  250. 

Ves.   Jr.   228 ;    Goods   of   Greves,    1  so  Goods  of  Greves,   1   Sw.  &  Tr. 

Sw.  &  Tr.  250;  Young's  Estate,  123  250. 

Cal.    337;     Phelps    v.    Robbins,    40  go  Bailey  v.   Bailey,   7   Jones    (N. 

Conn.  250;    Chambers  v.  McDaniel,  Car.)    44;    Tuttle  v.   Berryman,   94 

6  Ired.  Law   (N.  Car.)   226.  Ky.  553. 

56  Young's   Estate,    123   Cal.    337. 


LAW     OF     WILLS.  189 

ble,  at  least  Avitboiit  copying  such  instrument  bodily  into  the 
will.^^  Thus  a  description  "according  to  the  directions  writ- 
ten in  a  book  by  Melvin  W.  Pierce,  signed  by  me,  Alexander 
De  Witt,  and  witnessed  by  said  Melviu  W.  Pierce,"  was  held 
a  sufficient  identification.^"  So  a  statement  that  a  certain  dis- 
position of  property  was  made  in  pursuance  of  an  agreement 
with  the  husband  of  testatrix  "as  expressed  in  his  will"  was 
held  to  incorporate  the  husband's  will  in  that  of  testatrix, 
probably. ^^  So  a  description  "the  deed  which  I  send  you  a 
copy  of"  was  sufficient  where  a  copy  of  the  deed  was  in  fact 
enclosed  in  the  same  letter  with  the  will.®^ 

A  reference  to  a  deed  by  giving  the  parties  and  the  date 
of  the  deed  is  a  sufficient  description,*'^  as  is  a  reference  to  a 
note  by  giving  the  parties  and  amount.^® 

§167.     Effect  of  incorporation  of  document  in  will. 

If  the  document  is  of  such  nature  and  is  so  referred  to  in  the 
will  as  to  comply  with  the  requirements  already  given,  it  is 
treated  as  part  of  the  will,  and  as  if  it  were  set  forth  therein 
in  full.^^  If  incor])orated  by  reference  it  makes  no  difference 
whether  the  original  document  of  itself  was  valid  at  law  or  not. 
Thus  a  deed  invalid  because  of  defective  execution,^^  or  because 
it  never  was  delivered,^'-^  may  be  incorporated  in  a  will.  But 
it  has  been  held  that  the  incorporated  document  is  not  such  a 
part  of  the  will  that  it  should  be  offered  for  probate  in  connec- 
tion with  the  will.'^'^  But  where  the  will  does  not  so  refer  to 
another  document  as  to  incorporate  it  as  a  part  of  the  will, 

61  Skerrett's  Estate,  67  Cal.  585;  Loring  v.  Summer,  23  Pick.  (Mass.) 
Xewton   V.    Society,    130   Mass.    91  ;       98. 

Allen  V.   Boomer,  82   Wis.   364.  67 /„    re    Soher's    Estate,    78    Cal. 

62  Newton  v.  Society,  130  Mass.  477;  Fickle  v.  Snepp,  97  Ind.  289; 
91.  Ford  V.  Ford,   70  Wis.   19. 

63  Allen  V.   Boomer,  82  Wis.   364.  es  Skerett'c  Estate,  67  Cal.  585. 

64  Skerrett's  Estate,   67   Cal.   .585.  69  Mortgage    Trust    Company    V. 

65  Bizzey   v.   Flight,   L.   K.    3   Ch.  Moore,   150  Ind.  465. 

Div.    269;     Sheldon    v.     Sheldon,   1  to /^  re  Marchant    (1893),   Prob. 

Rob.  81;  Fesler  v.  Simpson,  58  Ind.  254;    Tuttle   v.    Berryman,   94   Ky. 

83.  553. 
6«  Fickle  V.    Snepp,   97   Ind.   289: 


190  LAW    OF    WILLS. 

siicli  other  document  may  still  be  treated  as  a  declaration  of 
trusts  if  the  will  devises  property  in  trust;  and  may  thus  be 
indirectly  enforced.'^^ 

§168.     Reference  to  verbal  instructions. 

Verbal  instructions  can  not  be  incorporated  into  a  written 
will  by  any  words  of  reference,  however  clear,  since  by  statute 
the  will  must  be  in  writing."^ 

§169.     Document  used  to  identify  beneficiary. 

Testator  may  refer  to  some  other  document  solely  for  identi- 
fication of  the  beneficiaries  of  his  will,  which  is  of  itself  com- 
plete, except  as  to  such  identification.  Where  this  is  the  sole 
object  of  the  reference  to  such  other  document  the  ordinaiy 
rules  of  incorporation  do  not  apply.  The  document  may  not 
be  specifically  described,'^^  and  may  not  even  be  in  existence  at 
the  time.'^^ 

Part  III — Sig:natufe  of  Testator. 

§170.     Necessity  of  seal. 

Unless  the  statute  specifically  requires  it,  a  will  need  not  be 
under  seal,  even  in  jurisdictions  where  a  seal  is  necessary  to 
the  validity  of  a  deed.'^°  Even  where  the  testimonium  clause 
contains  the  word  ''seal,"  the  omission  of  a  seal  does  not  inval- 
idate the  vall.'^® 


71  Marchant-'s  Estate  (1893),  P.  75  Smith  v.  Evans,  1  Wils.  (Eng.) 
254.  313;     Doe    v.     Pattison,     2     Black., 

72  Oliffe  V.  Wells,  130  Mass.  221;  (Ind.)  355;  Avery  v.  Pixley,  4 
Smith  V.  Smith,  54  N.  J.  Eq.  1;  Mass.  460;  Ketchum  v.  Stearns,  76 
Sims  V.  Sims,  94  Va.  580 ;  27  S.  E.  Mo.  396 ;  8  Mo.  App.  66 ;  Diez's 
436  (a  private  trust  upon  verbal  Will,  50  N.  Y.  88;  Williams  v. 
instructions).  Burnet,'  Wright    (Ohio)    53;    Hight 

73  Dennis  v.  Holsapple,  148  Ind.  v.  Wilson,  1  Dall.  94;  Rhorer  v. 
297;   46  L.  R.  A.   168.  Stehman,  1  Watts,  442. 

74  Piffard's  Estate,  111  N.  Y.  410;  76  Ketchum  v.  Stearns,  76  Mo. 
2   L.   R.   A.    193.  396:  8  Mo.  App.  66. 


LAW    OF    WILLS.  191 

^171.     Methods  of  signing-. 

The  modern  codes  usually  require  a  will  to  be  signed  as  a 
requisite  to  its  validity.^^  The  signature  required  may  under 
most  statutes  be  made  in  two  ways: 

1.  By  the  testator  himself. 

2.  By  some  other  person  authorized  by  the  testator  in  the 
manner  required  by  statute. 

The  signature  by  the  testator  himself  may  consist  either  of 
his  own  name  or  of  his  mark.  But  in  some  states  testaments 
of  personalty  do  not  need  the  signature  of  the  testator.''^^ 

§172.     Signature  by  name. 

The  testator  may  sign  his  name  by  writing  it  out  in  full  or 
by  abbreviating  it,  or  by  writing  his  initials^^  or  his  Christian 
name,^*^  or  by  using  an  assumed  name  where  not  done  with  in- 
tent to  deceive.^^  Misspelling  the  name  signed  does  not  inval- 
idate the  will.^2  The  signature  may  be  in  ink  or  with  a  pen- 
cil,^^  or  with  a  stamp,*^  or  a  seal.*^ 

§173.     Signature  by  mark. 

The  signature  may  consist  of  a  mark.  This  is  usually  in 
the  form  of  a  cross,  about  which  someone  writes  the  name  of 
the  testator  and  the  words  "His  mark."  The  law,  however, 
does  not  usually  require  such  form ;  any  lines  visible  on  paper 
which  were  put  there  by  testator  as  his  signature  is  a  mark  in 

"'  Remington  v.  Bank,  70  Md.  546.  tator's    initials    was    held    to    be    a 

Under     tlie     early     Pennsylvania  good  signature, 

statute,   if   testator  were   prevented  ^"^  Knox's  Appeal,  131  Pa.  St.  2.30 ; 

by  his  last  illness  from  signing  or  Guilfoyle's  Will,  96  Cal.  .598. 

asking  another  to  sign,  his  unsigned  si  In  re  Redding,  2  Rob.  3.39  ;    14 

will    would   be   valid.      Showers    v.  Jur.    1052:     In  re  Glover,    11   Jur. 

Showers,  27  Pa.  St.  485.  1022. 

Ts  Orgain  v.  Irvine,  100  Tenn.  193.  82  Word  v.  Whipps,  28  S.  W.  151 

79  Goods  of  Emerson.  9  L.  R.  Ir.  (Ky.)    (no  ofdcial  report). 

443;    In  re  Savory,   15   .Jur.   1042;  83  Knox's  Estate,  131  Pa.  St.  220. 

Jacob's    Will,    21    W.    X.    C.    (Pa.)  84  Jenkyns  v.  Gaisford,  3  S.  &  T. 

510.     In  Goods  of  Emerson,  9  L.  R..  93;    32  L.  J.   Prob.   122. 

Ir.    143.    a    seal    stamped   with   tes-  sr,  Goods  of  Emerson,  9  L.  R.  Ir. 

443. 


192 


LAW     OF    WILLS. 


the  contemplation  of  the  law.^^  Even  where  testat^Di  is  erro- 
neously named  in  the  will  and  signs  by  mark  the  will  is  valid 
if  executed  aniino  testandi.^'^ 

A  different  view  was  expressed  in  an  early  Pennsylvania 
case,  in  which  the  court  said :  "A  naked  mark  is  not  a  signa- 
ture at  common  law,  and  the  statute  was  not  designed  to  make 

it  so.*^ 

The  signature  by  initials  or  by  an  assumed  name  has  been 
upheld  on  the  theory  that  it  is  good  as  a  mark.  So  the  indistinct 
name  of  the  testator  may  be  good  as  a  signature  by  mark.^^ 

But  where  testator  tried  to  sign  the  ^yill  himself,  and  was 
unable  to  do  so  from  weakness,  a  small  line  made  by  him  in 
such  imsuccessful  attempt,  not  intended  by  him  as  a  signature, 
is  not  a  mark  within  the  meaning  of  the  law.^*^ 


86  Guthrie  v.  Price,  23  Ark.  396; 
Bailey  v.  Bailey,  35  Ala.  687 ;  In  re 
Guilfoyle's  Will,  96  Cal.  598 ;  Beve- 
lot  V.  Lestrade,  153  111.  625;  Robin- 
son V.  Brewster,  140  111.  649 ;  Rook 
V.  Wilson,  142  Ind.  24;  Cleveland 
V.  Spielman,  25  Ind.  95:  Scott  v. 
Hawk,  107  lo.  723;  Thompson  v. 
Thompson,  49  Neb.  157 ;  Nicker  son 
V.  Buck,  12  Cush.  332;  Sheehan  v. 
Kearney,  —  Miss.  — ;  21  So.  41; 
Stephens  v.  Stephens,  129  Mo.  422; 
Higgins  V.  Carlton,  28  Md.  115; 
Jackson  v.  Jackson,  39  N.  Y.  153; 
Pool  V.  Buffman,  3  Ore.  438;  More- 
land  V.  Brady,  8  Ore.  303;  Flan- 
nery"s  Will,  24  Pa.  St.  502;  Van 
HansAvj'ck,  v.  Wiese,  44  Barb.  494; 
Keeney  v.  Whitmarsh,  16  Barb.  141 ; 
Jenkins's  Will,  43  Wis.  610. 

"Whatever  testator  .  .  .  was 
shown  to  have  intended  as  his  sig- 
nature was  a  valid  signing,  no 
matter  how  imperfect  or  unfinished 
or  fantastical  or  illegible  or  even 
false  the  separate  characters  or  sym- 
bols used  might  be  when  critically 
judged.'-"  Plate's  Estate,  148  Pa.  St. 
55,  quoted  in  Sheehan  v.  Kearney 
(Miss.)  35  L.  R.  A.  102. 
87  Goods  of  Douce,  2   Sw.  &   Tr. 


593;  31  L.  J.  P.  172;  8  Jur.  (X.  S.) 
723;  6  L.  T.  789. 

88  Greenough  v.  Greenough,  11  Pa. 
St.  489.  In  this  case  a  witness 
wrote  testator's  name  and  testator 
then  made  his  mark.  It  was  held 
that  the  name,  not  the  mark,  was 
the  real  signature;  and  that  the 
witness  who  wrote  testator's  name 
must  have  been  requested'  so  to  do. 
The  weight  of  authority  is  that  on 
these  facts  the  mark  is  the  real 
signature. 

89  Hartwell  v.  McMaster,  4  Redf. 
(i\.  Y.)  389;  Sheehan  v.  Kearney, 
—  Miss.—;  21  So.  41. 

90  Everhardt  v.  Everhardt,  34 
Fed.  Rep.  82;  Plate's  Estate,  148 
Pa.  St.  55. 

So  where  testator  wrote  three 
letters  of  his  name  and  then 
said  that  he  could  not  finish  it, 
whereupon  proponent  made  a  mark, 
and  completed  testator's  name,  it 
was  held  that  as  testator  had  aban- 
doned the  attempt  to  sign,  the  let- 
ters written  by  him  were  of  no  ef- 
fect as  signature  by  initials  or  by 
mark,  and  the  signature  by  pro- 
ponent was  without  authority. 
Knapp  V.  Reilly,  3  Dem.  (X.  Y.) 
427. 


LAW    OF    WILLS.  193 

This  last  proposition  is  only  an  application  of  the  principle 
that  the  execution  of  the  will  must  be  animo  testandi.  In  the 
cases  cited  the  evidence  showed  that  the  testator  had  abandoned 
the  execution  of  the  will  after  attempting  it  in  vain. 

In  some  jurisdictions  a  seal  has  been  held  a  sufficient  mark 
under  the  statute.®^ 

Unless  required  by  statute  it  is  not  necessary  that  the  name 
of  the  testator  be  written  by  the  mark.^^ 

If  the  name  by  the  mark  is  written  incorrectly  such  mistake 
does  not  invalidate  the  will.'^^  xVnd  where  the  statute  requires 
that  testator's  name  must  be  written  by  the  mark  by  a  person 
who  writes  his  own  name  as  a  witness,  this  statute  is  complied 
with  where  the  subscribing  witness  writes  testator's  name  in  the 
body  of  a  will  which  is  so  short  that  testator's  name  is  near  the 
mark.^^ 

The  illiteracy  or  ill  health  of  testator  is  usually  the  cause 
for  his  signing  by  mark.  In  the  absence  of  special  statutory 
provisions  as  to  when  a  signature  by  mark  is  valid  it  is  not 
necessary,  however,  that  any  especial  reason  for  his  signing  in 
this  manner  should  exist.  A  testator  who  is  able  to  write  and 
who  is  in  good  health  may,  if  he  j^loases,  make  a  valid  signature 
by  mark.^^     It  is,  however,  an  unsafe  thing  to  do,  as  it  may 


»i  Townsend  v.  Pearce,  8  Vin.  Abr.  valid,  it  appearing  clearly  that  tes- 

142;   PI.  3;   Gryle  v.  Gryle,  2  Atk.  tatrix    was    in   fact   the   person   in- 

177.      (These   were   cases   of   repub-  tended. 

lication  where  testator's  name  was  Goods  of  Clark,  1  Sw.  &  Tr.  22; 

already    written,    and    the    addition  27  L.  J.  P.  18;  4  Jur,    (N,  S.)   24; 

of  the  seal  was  a  sufficient  acknowl-  6  W.  R.  307. 
edgment.)  94  Guilfoyle's  Will,  9G  Cal.  598. 

02 /u  re  Bryce,  2  Curt.  325;  Scott  »5  Taylor    (or   Baker)    v.   Dening, 

V.   Hawk,    107    lo.   723;    77   N.   W.  3  N.  &  P.  228;  8  A.  &  E.  94;  1  W. 

4G7;    Thompson   v,    Thompson,    49  W.  &  H.  148;    7  L.  J.  Q.  B.   137: 

Neb.   157.  2  Jur.  775;    Upchurch  v.  Upchurch, 

93  Goods    of    Clark,    27    L.    J.    P.  16  B.  Mon.    (Ky.)    102:     St.   Louis 

18;  1  Sw.  &  Tr.  22:  4  Jur.   (N.  S.)  Hospital   v.   Williams,   19  Mo.   609, 

24;   6  W.  R.  307;   Bailey  v.  Bailey,  St.  Louis   Hospital  v.   Wegman,   21 

35  Ala.  687;   Long  v.  Zook,  13  Pa.  Mo.    17;     Northcutt    v.    Northcutt, 

St.  400.  20  Mo.  266;   Ray  v.  Hill,   3  Strob. 

Thus  where  testatrix  was  named  (S.  Car.)    29<  ;   Rosser  v.  Franklin, 

throughout    the    will    by    her    name  6  Gratt.  (Va.)   1. 
before  marriage,  the  will   was  held  Contrary   view.     In   Pennsylvania 


194  LAW    OF     WILLS. 

give  rise  to  suspicions  of  fraud  or  forgery.  Where  the  statute 
permits  signature  by  mark  "when  the  person  can  not  write,'' 
physical  inability  as  well  as  illiteracy  is  a  good  excuse  for  sign- 
ing by  mark.^^ 

§174.     Signature  by  other  person. 

The  codes  usually  require  that  the  will  must  be  signed  "by 
testator."  In  construing  this  provision  it  is  held  that  the  usual 
rules  of  agency  have  no  application,  and  that  no  person  other 
than  testator  can  sign  the  will  for  testator  and  in  his  stead, 
unless  there  is  a  provision  of  the  statute  especially  authorizing 
such  signature  by  another.^'^  Many  of  the  codes  provide  that 
under  certain  conditions  and  in  a  specified  manner  some  person 
other  than  testator  may  sign  the  will  instead  of  testator.^^ 

At  the  risk  of  repetition  it  must  be  noted  that  in  each  par- 
ticular case  the  statute  under  which  the  will  is  executed  must 
be  complied  with,  and  to  determine  what  is  such  compliance 
the  provisions  of  the  statute  must  be  carefully  considered. 
The  general  principles  underlying  the  statutes  of  most  of  the 
states  are  presented  here;  the  details  must  be  sought  in  the 
respective  statutes.     These  statutes,  as  a  rule,  agree  in  requiring 

( 1 )  That  the  other  person  must  sign  the  will  in  the  presence 
of  testator. 

(2)  That  the  other  person  must  sign  the  will  at  the  express 
direction  of  testator. 


the  courts  have  held  that  some  spe-  tist  Convention,   10   Paige    (N.  Y.) 

cial    reason    must    appear    for    the  91 ;   Stevens  v.  Van  Cleve,  4  Wash, 

use   of   the   mark,    and    in   the   ab-  (U.  S.)    262;     Fritz  v.  Turner,  46 

sence  of  such  reason  a  will  signed  N.   J.    Eq.    515. 

by  a  mark  is  invalid.     Cavett's  Ap-  98  Riley   v.    Riley,    36    Ala.    496  ; 

peal,  8  Watts    &  S.  21 ;   Greenough  Toomes's  Estate,  54  Cal.  509 ;    Her- 

v.   Greenough,   11   Pa.   St.   489.  bert  v.  Berrier,  81   Ind.   1;   Haynes 

96  Gnilfoyle's  Will,  96  Cal.  598.  v.   Haynes,  33  0.  S.  598 ;   Peake  v. 

97  In  re  McElwaine,  18  N.  J.  Eq.  Jenkins,  80  Va.  293 ;  Jenkins's  Will, 
499:    citing   Robins   v.    Coryell,    27  43  Wis.  610. 

Barb.   (N.  Y.)   559;  Chaffee  v.  Bap- 


LAW    OF    WILLS.  195 

§175.     Presence  of  testator. 

A  signature  of  testator's  name  made  by  another  out  of  his 
presence  is  not  a  valid  signature  under  these  statutes.^^  The 
'presence  of  the  testator'  in  this  connection  means  exactly  what 
it  does  when  used  with  reference  to  the  signing  of  the  will  by 
the  subscribing  witnesses  thereto.  The  meaning  of  the  word 
"presence"  will  therefore  be  discussed  under  the  topic  of  At- 
testation.^*''^ It  will  be  sufficient  to  state  here  that  the  name 
can  not  be  written  in  the  presence  of  testator  unless  testator 
is  conscious  of  what  is  taking  place,  as  well  as  physically  pres- 
ent.^ °^  Further,  it  has  been  held  a  good  signing  in  the  testa- 
tor's presence  where  testator's  name  was  written  out  of  his 
presence ;  but  afterwards  in  testator's  presence  the  person  writ- 
ing testator's  name  added  "By  A.  B.,  by  request."  ^^^  The 
name  must  be  actually  written  by  such  other.  If  testator  re- 
quests this  other  person  to  write  his  name  and  he  refuse,  no 
matter  what  his  motive,  such  request  is  not  a  good  execution.^  °" 

§176.     Express  direction  of  testator. 

The  codes  generally  require  that  this  signature  by  another 
person  be  at  the  express  direction  of  the  testator.^ '^^  The  most 
common  and  safe  form  of  express  direction  is  one  given  in  so 
many  words  by  the  testator.  This,  however,  is  not  indispen- 
sable. He  may  give  the  express  direction  by  adopting  a  sug- 
gestion of  some  other  person  as  his  own.  Thus  when  the  at- 
torney of  the  testator  had  drawn  the  will  and  then  said  to  tes- 
tator: "You  can  make  your  cross  and  I  can  sign  it  for  you, 
if  you  so  direct;"  and  the  testator  said:  "Very  well,  do  so;'^ 
it  was  held  to  be  an  express  direction  to  sign.^*'^  It  has  been 
intimated  in  obiters  that  the  gestures  and  acts  of  the  testator 
may  amount  to  an  express  direction  without  the  use  of  any 

99  Catlett  V.  Catlett,  55  Mo.  330.  io3  Strieker   v.   Groves,    5   Whart. 

100  See  Sec.  209,  et  seq.  386.       (Witness    refused    solely    be- 

101  Diinlop   V.   Dunlop,   10   Watts,       cause  ot   a  misapprehension   of  the 
(Pa.)     153;    Chappell   v.   Trent,    90       law.) 

Va.   849.  io4Greenough    v.    Greenough,    11 

102  Ex  parte  Leonard,  39  S.  Car.      Pa.  St.  489. 

518.  losMullin's  Estate,  110  Cal.  252.. 


196  LAW    OF    WILLS. 

words;  and  this  is  undoubtedly  true.^^^  But  the  fact  that  the 
testator  knows  that  someone  is  signing  his  name  to  the  will 
and  makes  no  objection  does  not  amount  to  an  express  direc- 

tion.!*^"^ 

In  some  states  there  must  be  some  special  reason,  such  as 
illiteracy  or  extreme  sickness,  why  testator  does  not  sign  the 
will  himself.  But  where  this  is  the  rule  only  a  reasonable 
excuse  is  needed  for  his  requesting  another  to  sign.  Thus, 
where  he  was  physically  and  mentally  able  to  sign,  but  it  would 
have  been  very  dangerous  for  him  to  make  such  exertion,  it 
is  held  that  he  may  sign  by  another.^  ^^      • 

§177.     Who  can  sign  for  testator? 

In  addition  to  the  requirements  of  statute  the  courts  have 
considered  in  this  connection  two  more  important  topics: 

(3)  Who  can  sign  the  will  for  testator. 

(4)  What  form  of  signature  must  be  used  in  signing  the 
will. 

In  the  absence  of  special  statutory  restriction,  any  person 
may  sign  the  will  for  testator  if  properly  authorized.  Thus, 
one  of  the  subscribing  witnesses^  "^^  or  a  beneficiary  may  sign 
the  will  for  testator.^^^ 

§178.     Form  of  signing  for  testator. 

The  best  method  of  signing  the  will  in  such  case  is  to  write 
the  name  of  testator,  followed  by  the  statement  that  it  was 
written  by  subscriber,  naming  such  subscriber,  in  the  presence 

100  Waite    v.    Frisbie,    48    Minn.  Law   Bulletin    Supplement,    50    (no 

420.  official  report).     Ex  parte  Leonard, 

lOT  Waite    v.    Frisbie,    45    Minn.  39    S.    Car.    518;    Toomes's    Estate, 

361:   48  Minn.  420:   Murry  v.  Hen-  54  Cal.  309;  In  re  Langan,  74  Cal. 

nessy.  48   Neb.   608,  citing  Asay  v.  353;  Herbert  v.  Berrier,  81  Ind.  1; 

Hoover,    5    Pa.    St.    21 ;    Grabill    v.  Riley  v.  Riley,  36  Ala.  496. 

Bear,    13    Pa.    St.    396;    Greenough  noMcGee  v.   Porter,   14  Mo.  611. 

V.  Greenough,  11   Pa.   St.  489.  This  seems  to  be  the  holding  of  the 

108  Diehl  V.  Rogers,  169  Pa.  St.  court  in  this  case,  though  the  will 
316;  47  Am.  St.  Rep.  908.  was    declared    invalid    on    account 

109  Trembly  v.  Trembly  (Ohio  Su-  of  a  technical  defect  in  attestation, 
preme  Ct.  Commission ) ,  11  Weekly 


197 

LAW     OF     WILLS. 


of  testator  and  at  his  express  request.     But  such  accuracy  of 
statement  is  not  indispensable  unless  demanded  by  the  provi- 
sions of  the  statute.     In  some  jurisdictions  some  such  accuracy 
is  required  by  the  provisions  of  the  statute.-^      Thus  m  Mis- 
souri the  person  who  ™te  testator's  name  had  to  add  his  name 
as  a  subscribing  witness  to  the  will  and  to  state  that  he  sub- 
scribed testator's  name  at  his  request  or  the  will  was  void 
Under  a  somewhat  similar  New  York  statute  it  was  held  that 
if  one  who  signed  a  will  for  testator  omitted  to  sign  his  own 
name  the  will  was  not  thereby  invalidated,  though  such  wit- 
ness incurred  a  penalty.^ ^^  In  the  absence  of  specific  statutory 
provision  the  signature  of  testator's  name  seems  to  be  all  that 
is  necessary.-^     A  signature  "A.  B.  by  C.  D.  in  his  presence 
and  at  his  request"  was  held  valid.^^^     Signatures  have  also 
been  held  valid  where  the  witness  signs  his  own  name  first  and 
adds  that  it  is  for  testator.     Thus  "E.  N.  for  R.  D.  at  her  re- 
quest" was  upheld,  R.  D.  being  the  testatrix.^^«     So  has  "Writ- 
ten by  T.  J.  R.  in  the  presence  of  A  and  B  and  W.  M.  R.     T. 
J  R.,  witness.    By  request  of  the  above  W.  M.  R.,"  W.  M.  R. 
being  the  testator  ;i^^    and  it  has  been  held  a  valid  signature 
where  the  person  signing  wrote  "Signed  on  behalf  of  testator, 
in  his  presence  and  by  his  direction  by  me,"  and  signed  his 
own  name  thereto.^  ^^ 

§179.     Name  of  testator  added  by  other  to  his  mark. 

It  has  been  said  already  that  the  best  way  of  signing  by 
mark  is  for  the  testator  to  make  his  mark  and  for  some  other 
person  who  can  write  to  put  testator's  name  by  his  mark.     Is 

111  In  the  matter  of  the  will  of  ii4  Haynes  v.  Haynes,  33  0.  S. 
Cornelius,    14   Ark.    t)75:    McGee   v.       598. 

Porter,    14   Mo.   Gil;    Pool   v.   Buf-  us  Abraham  V.  Wilkms,  17  Ark. 

fum,  3  Ore.  438.  292. 

112  McGee  v.  Porter,  14  Mo.  611;  ne  Vernon  v.  Kirk,  30  Pa.  bt. 
Northcutt  V.  Northcutt,  20  Mo.  266 ;  218. 

Simpson   v.    Simpson,    27    Mo.    288.  n^  Riley  v.  Eiley.  36  Ala.  496. 

The  last  case  notes  a  change  in  the  us  In  re  Clark,  2  Curt.  329. 

Missouri   statute  on  this  point. 

113  Hollenbeek     v.     Van     Valken- 
burirh,  5  How.  Pr.  281. 


198  LAW    OF     W1T.LS. 

this  a  signature  by  the  testator  or  by  another?  Some  courts 
have  held  that  the  addition  of  testator's  name,  if  by  his  di- 
rection, has  the  effect  of  a  signature  by  another  person.^ ^^  The 
effect  of  such  holding  under  the  former  Missouri  statute  was 
remarkable.  If  testator  signed  by  his  mark  the  will  was  valid, 
but  if  at  his  request  some  one  wrote  testator's  name  by  the  mark 
the  will  was  thereby  rendered  invalid,  unless  such  person  also 
added  the  statement  that  he  signed  testator's  name  at  his  direc- 
tion and  subscribed  his  own  name  as  a  witness.^ ^"  The  more 
logical  view  is  that  if  the  testator  has  signed  by  a  mark  the  will 
is  valid,  even  if  some  one  has  added  testator's  name,  since  the 
signature  may  be  ignored  and  the  will  regarded  as  signed  by 
mark  only.^^^  Hence,  if  by  mistake  the  wrong  name  is  written 
by  the  mark  the  signature  is  not  invalidated  thereby.^  ^^  But, 
on  the  other  hand,  where  testator's  name  was  written,  leaving 
a  place  for  a  mark,  and  no  mark  has  been  inserted,  it  is  held 
that  such  a  signature  may  be  treated  as  a  signature  by  another. 
Thus  a  will  was  produced  with  a  signature  "A  (his  mark)  B," 
but  no  mark  was  made.  It  appearing  that  the  will  was  exe- 
cuted as  a  finality,  it  was  assumed,  in  the  absence  of  the  mark, 
that  testator  had  adopted  as  his  own  his  name  written  by  an- 
other about  the  place  where  the  mark  was  to  be  inserted.^^^ 

§180.     Guiding  the  hand  of  testator  as  signature  by  testator. 

It  not  unfrequently  happens  that  the  testator's  hand  is 
guided  by  some  other  person  when  he  signs  his  name  or  makes 
his  mark.  In  such  case  this  is  a  signing  by  the  testator  him- 
self, and  not  by  the  person  who  guides  his  hand.^^^     So  where 

119  St.  Louis  Hospital  Associa-  Jackson,  39  N.  Y.  153;  Moreland 
tionv.  Williams,  19  Mo.  609;  North        v.   Brady,   3   Ore.    303. 

cutt  V.  Northcutt,  20  Mo.  266;   St.  122  Rook  v.   Wilson,   142   Ind.  24. 

Lonis  Hospital  Association  v.  Weg-  123  Cleveland  v.  Spilman,  25  Ind. 

man,  21  Mo.  17;  Pool  v.  Buffum,  8  95. 

Ore.    438;    Tucker   v.    Sandidge,    85  124  Wilson  v.  Beddard,  12  Sim.  28  ; 

Va.  546.  10  L.  J.  Ch.  305;  5  Jur.  624;  Vines 

120  See  cases  cited  in  above  note.  v.  Clingfost,  21   Ark.   309;   Higgins 

121  In  the  matter  of  the  will  of  v.  Carlton,  28  Md.  115;  Sheehan 
Cornelius,  14  Ark.  675;  Eook  v.  v.  Kearney,  —  Miss.  — ;  35  L.  R. 
Wilson,    142    Ind.    24;    Jackson    v.  A.  102«,  21  So.  41 ;  citing  Watson  v. 


LAW    OF    WILLS. 


199 


the  testator  holds  the  pen  while  the  other  person  really  writes 
the  name  or  makes  the  mark  it  is  a  signature  by  the  testator.^  ^^ 
Even  where  the  testator  is  so  weak  as  to  be  unable  to  write  his 
name  and  another  person  guides  his  hand  so  as  to  form  the 
letters  of  testator's  name  it  is  held  to  be  a  valid  signature  by 
testator  if  he  touches  the  pen  while  his  name  is  thus  written.^  ^^ 
Thus  in  New  Jersey,  where  another  can  not  sign  for  testator, 
testator  was  so  weak  that  he  was  unable  to  write  his  name  un- 
aided, and  the  evidence  left  it  in  doubt  whether  the  person  who 
steadied  his  hand  did  not  guide  his  fingers  so  as  to  write  his 
name.  The  court  held  that  in  any  event  the  signature  was 
valid.^^'^  But  where  testatrix  put  her  hand  upon  the  hand  of 
another  person  who  was  writing  her  name  it  was  held  to  be  a 
signature  by  such  other  person,  and  not  by  testatrix.^  ^^  And 
where  testator  was  unconscious  and  his  mark  was  made  by  put- 
ting a  pen  into  his  hand  and  guiding  so  as  to  make  a  mark, 
it  was  held  not  to  be  a  valid  execution.^  ^^ 

§181.     Place  of  signature  upon  will. — Early  statutes. 

The  original  Wills  Act  merely  required  that  a  will  be  signed. 
The  wording  of  this  statute  was  in  this  respect  like  that  of  the 
Statute  of  Frauds,  and  a  similar  construction  followed.  It  was 
held  that  the  signature  need  not  be  at  the  end  of  the  will,  but 
that  it  might  appear  in  any  part  thereof.^^*^    All  that  was  nec- 


Pipes.    32    Miss.    451 ;    Vandruff   v.  128  Waite    v.    Frisbie,    45    Minn. 

Rinehart,  29  Pa.  St.  232;   McMech-  361;  48  Minn.  420. 

en   V.    McMeehen,    17    W.    Va.    683;  123  Dunlop   v,   Dunlop,    10   Watts 

Cozzen's  Will,  61  Pa.  St.  196;  Stev-  153. 

ens  V.  Van  Cleve.  4  Wash.  C.  C.  262.  iso  Armstrong's     Exr.     v.     Arm- 

125  Campbell  v.  McGuiorgan,  N.  J.  strong,  29  Ala.  538 ;  Brown's  Will, 

Prer.   (1896),  34  Atl.  383.  1    B.   Mon.    (Ky.)    56;   Miles'   Will, 

120  Fritz  V.  Turner,  46  N.  J.  Eq.  4  Dana    (Ky.)    1;   Hall  v.  Hall,   17 

515;    Sheehan    v.    Kearney    (Miss.)  Pick.    (Mass.)    373;   Catlett  v.  Cat- 

35  L.  R.  A.  102;  Vandruifr  v.  Rine-  lett,    55    Mo.     330;      Kirkpatrick's 

hart,  29  Pa.   St.  2.32;   'irezevant  v.  Will.    22    X.    J.    Eq.    463:    Allen   v. 

Rains,  85  Tex.   329.  Everett.  12  B.  Mon.  371 ;  Lawson  v. 

127  Fritz  V.  Turner,  46  N.  J.  Eq.  Dawson's  Estate  (21  Tex.  Civ.  App. 

515.  361),  53  S.  W.  64. 


200  LAW     OF     WILLS. 

essary  was  that  the  name  be  written  by  the  testator,^  ^^  or  by 
some  person  in  his  presence  and  by  his  direction,^ ^^  with  the 
intention  of  finally  executing  the  instrument.^  ^^ 

It  was  even  held  before  the  great  strictness  exacted  by  mod- 
em statutes  that  a  signature  written  by  another  out  of  testator's 
presence  and  not  at  the  end  of  the  will  might  be  adopted  by 
him  as  his  signature.  The  best  method  of  indicating  such 
intention  was  by  express  language  in  the  will.  The  formal- 
ities apparent  on  the  face  of  the  will  might  also  indicate  such 
intention,  without  the  use  of  express  language.  Some  courts 
held  that  extrinsic  evidence  could  not  be  received  to  show  that 
the  testator's  name  in  the  body  of  the  will  was  intended  as  a 
signature.^ ''^  Many  of  these  decisions  depend  on  specific  stat- 
utory provisions.  Other  courts  receive  such  evidence  and  allow 
the  surrounding  facts  and  circumstances,  including  the  declara- 
tions of  testator/ ^^  to  be  received  to  determine  whether  the 
name  of  testator  was  intended  as  a  signature  or  not. 

Under  a  statute  which  merely  required  a  will  to  be  signed 
"in  such  a  manner  as  to  make  it  manifest  that  the  name  is  in- 
tended as  his  signature,"  it  was  held  that  where  testator's  name 
appeared  in  his  own  writing  at  the  beginning  of  the  will,  and 
also  on  the  envelope  in  which  the  will  was  contained,  but  not  at 
the  end  of  the  will,  it  was  not  a  sufficient  signature  w^ithin  the 
statute;  ^^*^  and  where  a  will  contained  testator's  name  in  his 
own  handwriting  in  the  body  of  the  will,  but  concluded  with  an 
unsigned  testimonium  clause,  ''in  witness  whereof  I  have  here- 
unto set  my  hand,"  it  was  held  that  testator  had  intended  that 

131  Adams  v.  Field,  21  Vt.  256;  wheret  not  signed  at  the  end,  the 
Morison    v    Tumour,    18    Ves.    175.  facts    given    did    not    show    her    in- 

132  Armstrong's  Exr.  v.  Arm-  tention  that  the  name  as  written 
strong.    29   Ala.    538.  should  be  a  signature.) 

133  In  matter  of  Booth's  Will,  127  i34  Jolly's  Will,  5  N.  J,  Eq.  456 ; 
N.  Y.  109.  (In  this  case  testatrix's  Warwick  v.  Warwick,  86  Va.  596. 
name  was  written  only  at  the  begin-  iss  Armstrong's  Exr.  v.  Arm- 
ning  of  the  will.  She  said  to  the  strong,  29  Ala.  538 ;  Adams  v.  Field, 
witnesses:     "This  is  my  will;   take  21    Vt.   256. 

it  and  sign   it."     It  was  held   that  ise  Warwick  v.   Warwick,  86  Va. 

if  a  will  controlled  as  this  was.  by       596. 
New    Jersey    law,    could    be     valid 


901 

LAW     OF     WILLS.  ^"-^ 

his  name  in  the  body  of  the  will  was  not  to  be  the  final  signa- 
ture thereto.^ ^^  ,     ,     .       r  ^i      • 

So  where  testatrix's  name'  appeared  in  the  body  of  the  in- 
strument only,  but  not  at  the  end,  it  was  not  a  valid  signature 
where  there  was  no  evidence  except  a  declaration  of  testatrix 
that  she  had  written  the  will.^^* 

§182.     Place  of  signature  upon  will.— Modern  statutes. 

In  order  to  remove  the  uncertainty  which  arises  from  the 
insertion  of  testator's  signature  in  the  body  of  the  will,  many 
jurisdictions  have  provided  by  statute  that  a  will,  to  be  valid, 
must  be  signed  by  testator  at  the  end  thereof.^  ^^ 

Where  such  a  statute  is  in  force  any  question  about  the  effect 
of  testator's  signature  in  the  body  of  the  will  is  summarily 
settled,  but  important  questions  are  raised  m  its  place  m  de- 
termining what  is  the  end  of  the  will. 

§183.     Signature  with  reference  to  attestation  clause. 

Testator's  signature  is  often  followed  by  an  attestation  clause. 
This  has  been  held  to  be  a  signature  at  the  end  of  the  wiU.^^*^ 

The  sioTiature  of  testator  is  sometimes  written  after  the  at- 
testation clause.  This  has  also  been  held  to  be  a  good  signature 
at  the  end  of  the  will.^^^  And  Avhere  testator  wrote  his  name 
after  the  attestation  clause  on  the  right,  and  the  witnesses 
wrote  their  names  opposite  on  the  left,  it  was  said  that  an  ob- 
jection to  such  a  mode  of  signing  was  frivolous.^^^     So,  where 

i37Catlett  V.  Catlett,  55  Mo.  330.  i"  Goods   of   Williams,    35    L.    J. 

i38Schermerhorn     v.     Merritt  ?•  2  ;  L-  R-  \P;  ^ ;  11/^"  i^^f, 

(Mich.)    (1900),  82  N.  W.  513.  982;    13  L.  T.  304;   U  W-  R.  Ill, 

130  Jones  V.  Jones,  3  Met.    (Ky.)  In  re  Dayger,  HO  N.  Y.  666. 
266;   Glanccv  v.  Glanccy,   17   O.   S.  "^  Younger    v.Dufte,    94   N.    Y. 

134:   Baker  v.  Baker,  51   O.  S.  217.  535;   Cohen's  WUl    1  Tuck    286 
Under  such  statutes  where  testator  "^  Hallowell  v.  Ha  lowell    88  Ind. 

signs    in    the    middle    of    the    will  253 ;  So  Goods  of  Puddephatt,  39  L. 

by  mark,  the  will  is  invalid.  J-  ?•  84;  L.  R.  2  F.  Mi. 

Margary  v.  Robinson,  56  L.  J.  P. 
42;  12  P.  D.  8;  57  L.  T.  281;  35 
W.   R.    350:    51   J.   P-   407. 


202  T-AW     OF     WILLS. 

testator  ^\Tote  his  name  in  a  blank  in  the  attestation  clause  it 
was  held  to  be  a  signature  at  the  end  of  the  will.^^^ 

It  may  be  laid  down  as  a  general  rule  that  as  an  attestation 
clause  is  not  strictly  a  part  of  the  will,  but  rather  a  certificate 
thereto,  and  yet  a  certificate  made  necessary  by  statute,  the 
signature  of  testator  may  either  precede  or  follow  it  and  still 
be  at  the  "end"  of  the  will. 

§184.     Effect  of  blanks  in  body  of  the  will. 

In  some  cases  blanks  occur  in  the  body  of  the  will,  making 
interlineations  possible.  A  will  signed  after  the  last  clause  of 
such  a  will  is  held  to  be  signed  at  the  end  thereof.^ "^^ 

Thus,  where  each  clause  of  the  will  was  written  on  a  sep- 
arate sheet  of  paper,  with  a  blank  both  above  it  and  below  it, 
it  was  held  valid.^^^ 

§185.     Effect  of  blank  immediately  before  signature. 

In  other  cases  the  testator  signs  his  name  after  the  body  of 
the  will,  but  leaves  a  blank  of  some  considerable  extent  between 
the  body  of  the  will  and  his  signature.  The  courts  are  at  vari- 
ance as  to  whether  such  a  will  is  signed  at  the  end  thereof  or 
not.  Some  courts  look  upon  the  statute  requiring  the  signature 
to  be  at  the  end,  as  intended  only  to  do  away  with  the  difiiculty 
of  determining  whether  a  will  was  signed  or  not.  Under  such 
a  theory  of  the  existence  of  the  statute  they  hold  that  a  sig- 
nature after  the  body  of  the  will  is  at  the  end,  even  though 
a  blank  space  intervenes.-^ "^^ 

143  Goods  of  Walker,  2  Sw.  &  Tr.  T.  434;   16  W.  R.  64;  In  re  Acker, 

354;  31  L.  J.  P.  62 ;  8  Jur.   (N.  S.)  5  Dem.  19. 

314;   5  L.  T.  766;   Goods  of  Mann,  n*  Barnewall  v.  Murrell,  108  Ala. 

28  L.  J.  P.  19;  Goods  of  Pearn,  45  366. 

L.  J.  P.  31 ;    1   P.  D.  70 ;    33  L.  T.  "s  Barnewall  v.  Murrell,  108  Ala. 

705;  24  W.  R.  143;  28  L.  J.  P.  19;  366. 

Goods  of  Cassmore,  38  L.  J.  P.  54 ;  i*"  So  it  was  held  where  the  will 

L.   R.    1   P.   653;   20  L.  T.   497;    17  ended   on   one   page   and   the   signa- 

W.    R.    627 ;    Goods    of    Harris,    23  ture  of  testator  was  placed  on  thf 

W.  R.  734 ;   Goods  of  Huckvale,  36  next  page,  leaving  a  blank  of  fron 

L.  J.  P.  84;  L.  R.  1  P.  375;   16  L.  a  few  lines  to  half  a  page  interven- 


LAW    OF    WILLS.  *03 

Other  courts  hold  that  an  additional  reason  for  requiring 
the  signature  to  be  at  the  end  of  the  will  was  to  prevent  fraud- 
ulent additions  to  the  will.  Such  courts,  therefore,  hold  that 
a  signature  separated  from  the  body  of  the  will  by  a  blank 
space  is  not  a  signature  at  the  end  within  the  meaning  of  the 
statute.^  "^^ 

§186.     Additions  after  signature. 

Wills  are  made  in  which  the  testator's  signature  is  followed 
by  additional  writing.     Is  such  a  will  signed  at  the  end  ? 
In  discussing  this  question  we  must  notice : 

1.  If  such  writing  was  added  after  the  execution  and  at- 
testation were  completed  it  is  in  legal  effect  a  codicil.  ^  If  not 
duly  signed  and  executed  itself,  such  codicil  is  invalid;  but 
such  invalidity  can  not  affect  the  validity  of  a  will  previously 
signed  and  executed.^  ^^ 

2.  The  addition  to  the  will  may  have  been  written  before 
execution  and  may  be  so  referred  to  in  the  body  of  the  will^  as 
to  be  incorporated  by  reference  therein.  What  is  incorporation 
by  reference  has  already  been  discussed.  It  is  sufficient  to 
state  here  that  where  the  addition  below  the  signature  has  been 
incorported  in  the  will  by  reference  its  presence  does  not  in- 
validate the  will,  and  the  will  is  considered  in  law  as  being 
signed  at  the  end  thereof.^ ^^ 

ing.     Goods  of  Archer,  40  L.  J.  P.  So  where   the  will   ended   on   the 

80-   L.  R.  2  P.  252;  25  L.  T.  274;  first   page   and   was    signed   on   the 

19    W    R    785;    Smee  v.   Bryer,    6  fourth.     Goods  of  Fuller,  62  L.  J. 

Moore     P     C.    404;     13    Jur.    289;  P.   40;    (1892)    P.   377;    1   R.   453; 

Hunt  'v.  Hunt,  33  L.  J.  P.  135;  L.  67  L.  T.  501;   56  J.  P.  713;  Goods 

R.  1  P.  209;  14  L.  T.  859:  Derinzy  V.  of    Rice,    Ir.    R    Eq.    176. 

Turner    1  Tr.  Ch.  R.  341 ;  Gilman'3  i*^  Soward    v.    Soward,     1     Duv. 

Will,  38  Barb.  364;  Goods  of  Hors-  (Ky.)     126.        (In    this    case    two 

ford,'  44  L.  J.  P.  9 ;  L.  R.  3  P.  211 ;  blank  pages  intervened  between  the 

31  L.  T.  553;  23  W.  R.  211.  signature   of   testator   and   the   end 

So,  where  the  will  was  written  on  of  the  will.) 

the    first    pa-e,    and    the    signature  "^ /n  re  Jacobson,   6  Dem.   298; 

was   on   the   third   page.      Goods   of  Heise  v.  Heise,  31  Pa.  St    246. 

Williams,  35  L.  J.  P.  2 ;  L.  R.  1  P.  "^  Baker's    Appeal,    107    Pa.    bt. 

5;    11   Jur.    (N.   S.)    982;    13  L.  T.  381. 
304;   14  W.  R.  HI. 


204  LAW    OF    WILLS. 

Leaving  out  of  consideration,  therefore,  wills  in  which  ad- 
ditions are  made  in  the  nature  of  codicils,  after  execution,  and 
wills  in  which  the  additions  made  below  the  signature  are  in- 
corporated in  the  will  by  reference,  and  discussing  the  effect 
of  additions  made  below  the  signature  before  the  execution  of 
the  will  and  not  incorporated  therein  by  reference,  we  must 
first  notice  that  such  additions  are  divided  into  two  classes  as 
to  their  effect  on  the  validity  of  the  will. 

1.  Such  additions  as  invalidate  the  will. 

2.  Such  additions  as  do  not  invalidate  the  will,  but  are 
merely  void  themselves. 

The  effect  of  the  addition  depends  upon  its  nature. 

1.  If  the  addition  is  a  dispositve  clause,  i.  e.,  one  which 
adds  to  or  revokes  previous  bequests,  such  clause  invalidates 
the  whole  will.^^" 

Thus,  where  the  testator  signed  his  will,  then  said  that  he 
would  finish  it,  and  added  a  bequest,  after  which  the  witnesses 
signed  their  names,  it  was  held  that  testator's  signature  was  not 
at  the  end,  and  the  whole  will  was  invalidated;  ^^^  and  the  ad- 
dition below  the  signature  of  reasons  for  making  the  will  has 
been  held  to  invalidate  will  where  it  contained  a  repetition  of 
the  bequest.-^ ^^ 

A  will  signed  on  the  first  page  and  written  on  the  second 
and  third  pages  was  held  valid  upon  the  ingenious  theory  that 
the  will  could  be  regarded  as  beginning  after  testator's  signa- 
ture, and  being  carried  over  to  the  first  page  and  thence  down 
to  the  execution;  ^^^  and  that  the  sense  of  the  will  and  not 
the  order  determines  what  the  end  is.^^^ 

But  in  a  recent  ISTew  York  case  the  will  was  written  upon  a 


150  Andrew's  Will,  162  N.  Y.  1 ,  precedent  devise  which  might  have 
In  re  Hewitt's  Will,  91  K  Y.  261 ;  influenced  the  construction  of  it, 
Hays  V.  Harden,  6  Pa.  St.  409.  and   also  an  additional   substantive 

151  Glancy    v.    Glancy,    17    O.    S.  devise. 

134,  153  Goods  of  Wotton,  43  L.  J.  P. 

152  Hays  V,  Harden,  6  Pa.  St.  14;  L.  R.  3  P.  159;  30  L.  T.  75; 
409.     In  discussing  this  case  some  22  W.  R.  352. 

years     after,     in    Wikoff's     Appeal,  i54  Goods    of    Kimpton,    3    Sw.    & 

15  Pa.  St.  281,  the  court  said  that  Tr.  427;   33  L.  J,  P.  153;   10  L.  T, 

the  addition  contained  reasons  for  a  137. 


LAW     OF     WILLS.  205 

blank  printed  for  the  purpose,  consisting  of  two  sheets  con- 
nected at  the  left  margin  like  the  leaves  of  a  book.  The  second 
page  was  numbered  at  the  top  "3rd  page/'  and  upon  it  were 
the  signatures  of  testator  and  the  subscribing  witnesses.  The 
third  page  was  numbered  at  the  top  "2nd  page,"  and  contained 
certain  dispositive  provisions,  no  sentence  being  carried  over 
from  the  second  to  the  third  page.  It  was  held  that  the  will 
was  not  subscribed  at  the  end,  and  was  not  entitled  to  be  ad- 
mitted to  probate.^^^ 

The  clause  added  below  the  signature  may  appoint  an  ex- 
ecutor. In  such  case  the  authorities  are  at  variance  as  to  its 
effect  upon  the  will.  Some  courts  hold  that  the  addition  of 
such  a  clause  below  the  signature  invalidates  the  whole  will.^^^ 
So,  where  testator  signs  in  the  middle  of  the  clause  appointing 
an  executor,  his  signature  is  not  at  the  end  of  the  will.^^'^ 

Thus,  where  a  will  concluded,  "I  make,  constitute  and  ap- 
point Edward  McCarthy  to  be  executor  [J.  Kelly]  of  this  my 
last  will  and  testament,  hereby  revoking  all  former  wills  by  me 
made"  it  was  held  that  the  signature  "J.  Kelly"  was  not  at  the 
end  within  the  meaning  of  the  statute.-^ ^^ 

So  where,  after  signing  his  name,  testator  added  a  clause 
directing  the  executor  to  sell  certain  realty  and  devote  the 
proceeds  to  paying  the  debts  and  legacies,  and  then  the  wit- 
nesses signed,  it  was  held  that  the  will  was  invalid  as  not  signed 
at  the  end.^^^  Other  authorities  hold  that,  while  such  clause 
is  void,  the  will  above  the  signature  is  valid. ^^'^ 

As  the  appointment  of  an  executor  is  testamentary  in  its  na- 
ture, the  former  opinion  seems  the  better  on  principle. 

A  signature  written  in  the  final  clause  of  the  will  has  been 


155  Andrew's  Will,  162  N.  Y.  1.  glish  eases,  In  re  Woodley,  3  S.  &  T. 

156  In  re  Jacobson,  6  Dem.  298 ;  429 ;  In  re  Walker,  2  S.  &  T.  354 ; 
In  re  Mies,  13  St.  Rep.  (K  Y.)  In  re  Cassmore,  1  L.  R.  Pro.  &  Div. 
756;  Wineland's  Appeal,  118  Pa.  p.  653,  as  being  under  a  more  lib- 
St.  37.  eral   statute. 

157  Sisters  of  Charity  v.  Kelly,  67  i59 /n  re  Blair,  152  N.  Y.  645;  84 
N.  Y.  409;   Hewitt's  Will,  91  N.  Y.  Hun,  581. 

261;  O'Neill's  Will,  91  N.  Y.  516.  i6o  MeCullough's      Estate,       Myr. 

158  Sisters  of  Charity  v.  Kelly,  67  Prob.   (Cal.)   76. 
N.   Y.   409,   distinguishing   the   En- 


206  LAW     OF     WILLS. 

held  to  be  at  the  end.  Thus,  a  signature  partly  across  the  last 
line  but  one,  all  but  one  letter  being  above  the  last  line,  was 
held  to  be  at  the  end.^^^ 

Where  dispositive  clauses  follow  testator's  signature 
the  usual  rule  is  that  the  whole  will  is  invalid.^  *^^ 
But  in  a  recent  English  case  the  attestation  clause 
was  placed  at  the  bottom  of  the  first  page,  and  the  last  sentence 
of  the  will  was  an  unfinished  direction  for  settling  his  estate. 
The  words  "all  cheques  to  be  paid  away  shall  be"  preceded 
the  attestation  clause  and  signature;  on  the  second  page  fol- 
lowed "signed  by  my  daughter  Emma  and  all  accounts  shall  be 
settled  by  her."  This  will  was  held  valid  as  to  the  part  pre- 
ceding the  signature,  but  invalid  as  to  the  part  on  the  second 
page.-^^^ 

If  the  clause  added  below  the  signature  neither  affects  the 
disposition  of  the  estate  nor  appoints  executor  or  guardian,  the 
authorities  are  unanimous  that  such  clause  does  not  invalidate 
the  will,  and  that  within  the  meaning  of  the  statute  the  signa- 
ture is  at  the  end  of  the  will.^*'^ 

Thus,  where  testator  wrote  after  his  signature  "My  sister 
in  law  (the  executrix)  is  not  required  to  give  bond  when  pro- 
bated," such  addition  did  not  invalidate  the  will;^^^  and  the 
addition  of  some  figures  below  the  signature,  having  no  bearing 
upon  the  will,  does  not  invalidate  it;  ^^^  or  an  unsigned  map 
referred  to  in  the  will;  ^^"^  or  a  memorandum,  "This  will  was 
commenced  in  the  year  of  our  Lord  1843  and  added  to  as 
occasion  required."  ^^^ 

A  reference  to  a  schedule  which  testator  failed  to  annex  to 
the  will  does  not  invalidate  the  will  where  testator  signed  at 
the  end  of  the  will  as  writtien. 

161  Goods  of  Woodley,  3  Sw.  &  Tr.  Wikoff's  Appeal,  15  Pa.  St.  281 ; 
429;    33  L.  J.  P.    154.  Tonnele  v.  Hall,  4  N.  Y.  140;   Con- 

162  See  preceding  cases  cited  in  boy  v.  Jennings,  1  S.  C,  (N.  Y.) 
this  section.  622;   Baker  v.  Baker,  51  0.  S.   217. 

163 /'rt  re  Anstee    (1893),  P.  283;  les  Baker  v.  Baker,  51  O.  S.  217. 

Goods  of  Arthur,  L.  R.  2   P.   273;  ise  Fouche's    Estate,    147    Pa.    St. 

25  L.  T.  274;  19  W.  R.  1016;  Sweet-  395;  or  the  date.  Flood  v.Pragoflf,  79 

land  V.  Sweetland,  4  Sw.  &  Tr.  6;  34  Ky.   607. 

L.  J.  P.  42;   11  Jur.    (N.  S.),  182;  i67  Tonnele  v.  Hall,  4  N.  Y.   140. 

11  L.  T.  749;  13  W.  R.  504.  les  Wikoff's    Appeal,    15    Pa.    St. 

164  Flood  V.  Pragofi",  79  Ky.  607;  281. 


LAW     OF     WILLS.  ^^* 


§187.     Signature  opposite  the  end  or  foot  of  the  will. 

Under  some  statutes,  of  which  the  modem  English  statute 
is  a  type,  testator's  signature  is  good  if  placed  opposite  the 
end  or  foot  of  the  dispositive  clauses  of  the  will.  Where  tes- 
tator signed  his  name  on  the  left  side  of  the  will,  and  con- 
tinued the  will  in  short  lines  on  the  right  side  to  a  point  slightly 
below  testator's  signature,  the  will  was  held  to  be  properly 

signed.^ '^^ 

A  signature  on  the  lower  edge  of  the  page  on  which  the  dis- 
positive part  of  the  will  was  written,^^^  or  along  the  margin  of 
the  will  opposite  the  dispositive  part  of  the  will  is  a  good  sig- 
nature at  the  end  in  the  meaning  of  these  statutes.^^^ 

Where  the  will  is  bitten  on  the  first  and  third  pages  of  the 
form,  and  testator's  signature  was  written  on  the  second  page 
opposite  the  end  of  the  dispositive  part  of  the  will,  it  is  held 
valid  under  these  statutes.^  ^^ 

Where  the  will  covered  the  first  three  pages  of  a  form,  and 
was  signed  at  the  end  of  the  first  page,  this  was  not  at  the  end, 
or  opposite  the  end,  of  the  will.^^^ 

Pa^t  rV— Attestation  and  Subscription. 
§188.     Attestation  and  subscription  entirely  statutory. 

Unless  the  statute  requires  it,  it  is  not  necessary  that  a  will 
be  attested  or  subscribed  by  witnesses.^^^  Even  where  the 
statutory  requirement  is  that  the  will  be  "proved  by  the  oaths 

169  Goods  of   Ainsworth,   L.   R.   2  195;    13    W.     R.     996;     Goods     of 

P   1  '>l  •  23  L   T    3''4  Coombs,  36  L.  J.  P.  25. 

"iTO  Goods  of  Jones',  4  Sw.  &  Tr.  1 ;  "^  Eoyle  v.  Harris  ( 1895)    P.  163. 

34   L    J    P     41;    11    Jur.    (N.    S.)  i74  fi^  porie  Henry,  24  Ala.  638 ; 

118-   13  L   T    '?10-   13  W.  R.  414.  Mealing  v.  Pace,  14  Ga.  596;  Leath- 

171  Goods  of  Wright,  4  Sw.  &  ers  v.  Greenacre,  53  Me.  561 ;  Mars- 
Tr  35-  34  L  J  P.  104;  13  L.  T.  ton  v.  Marston,  17  N.  H.  503;  Kis- 
195;  Goods  of  Collins,  3  L.  R.  Ir.  eeker's  Estate,  190  Pa.  f- .476;  42 
241;  Goods  of  Stoakes,  31  L.  T.  Atl.  886;  Orgain  v.  Irvine  100 
552;23W.R.62.  Tenn.     193;     Hays    V.    Ernest,    32 

172  Goods    of    Powell,    4    Sw.    &  Fla.    18. 
Tr.   34;   34  L.  J.  P.  107 ;    13  L.  T. 


208  I-^W    OF    WILLS. 

or  affirmations  of  two  or  more  competent  witnesses,"  this  does 
not  require  attestation  or  subscription,  but  merely  that  the 
signature  of  testator  be  proved.^^^  But  in  England  and  in  all 
American  states,  with  the  exception  of  Pennsylvania,  the  pro- 
visions of  the  statute  require  that  the  ordinary  will  be  attested 
and  subscribed  by  witnesses-^^*^  There  are  special  exceptions 
to  this  general  rule,  such  as  holographic  wills,  nuncupative  wills 
and  the  like,  which  are  discussed  elsewhere.^ '^^ 

In  most  states  the  same  rules  as  to  attestation  and  subscrip- 
tion apply  to  testaments  of  personalty  as  to  wills  of  realty.  In 
some  states,  however,  fewer  witnesses  are.  necessary  in  cases 
of  testaments  than  in  those  of  wills,^^^  and  in  others  no  wit- 
nesses at  all  are  necessary  for  testaments.^  ^^ 


§189.     Distinction  between   attestation   and  subscription. 

The  language  of  the  statutes  indicates  a  distinction  between 
attestation  and  subscription,  as  the  will  is  required  to  be  at- 
tested and  subscribed.  Attestation  is  said  by  some  courts  to 
be  the  act  of  perceiving  the  performance  of  the  various  acts 
necessary  to  the  legal  execution  of  a  will.^^'^  Subscription  is 
the  act  of  the  attesting  witness  in  signing  his  name  upon  the 
will  to  identify  the  instrument  thus  attested.^ ^^ 

I'his  distinction  is  repudiated  by  some  well-considered  mod- 
ern cases  as  being  purely  verbal,  and  "attestation"  and  "sub- 
scription" are  there  said  to  be  practically  synonymous  terms  in- 

175  Frew    V.    Clarke,    80    Pa.    St.  itt  See   Chap.   XIII. 

170;    Eohrer   v.    Stehman,    1    Watts  "s  Hays  v.  Ernest,  32  Fla.  18. 

(Pa.)   442 ;  Rossetter  V.  Simmons,  6  "9  Orgain    v.    Irvine,    100    Tenn. 

S.   &  R.   452;   In  re  Kisecker's   Es-  193;  Franklin  v.  Franklin,  90  Tenn. 

tate,  190  Pa.   St.  476.  But  in  Iowa  44. 

under  a  statute  requiring  a  will  to  iso  Swift    v.    Wiley,    1    B.    Mon. 

be    "witnessed    by    two    competent  (Ky.)    117,  quoted  and  followed  in 

witnesses,"    it    was    held    that    the  Reed  v.  Watson,  27  Ind.  448. 

witnesses     must      subscribe      their  isi  See  the  cases  cited  in  the  pre- 

names.      Boyens'   Will,    23   lo.    354.  ceding  note,  and  also  Walker's  Es- 

iTGiJ^   'parte   Winslow,    14   Mass.  tate,   110  Cal.   387. 
421  ;    Bartee   v.    Thompson,    8    Bax. 
508 ;   and   see  cases  cited  in  follow- 
ing  sections. 


LAW    OF    WILLS. 


209 


volving  the  same  elements.^^^     Under  this  view  no  change  of 
intention  on  the  part  of  the  legislature  can  be  presumed,^  be- 
cause it  uses  "attest"   in  one  connection  and  "subscribe     m 
another. 
§190.     Number  of  subscribing  witnesses. 

The  number  of  subscribing  witnesses  necessary  to  the  validity 
of  the  will  is  determined  by  local  statute.  Two  or  three  is  the 
number  usually  required.  Whatever  the  number  required  by 
statute,  a  will  attested  and  subscribed  by  any  less  number  is 

invalid.^  ^^ 

So,  where  a  will  was  written  in  duplicate,  and  by  mistake 
testator  signed  one  and  the  subscribing  witnesses  the  other,  it 
was  held  that  the  will  was  not  valid.^^^  Where  two  witnesses 
subscribed  the  will,  one  of  whom  was  incompetent,  it  was  held 

fin,  69  Wis.  529),  it  Is  not  clear 
what,  if  anything,  attestation  is  in- 
tended to  add  to  the  mere  fact  of 
subscription."  Skinner  v.  Ameri- 
can Bible  Society,  92  Wis.  209. 

The  Illinois  courts  repudiate  the 
idea  of  a  distinction  between  at- 
testation and  subscription.  "This 
act  of  attestation  consists  in  the 
subscription  of  the  names  of  the 
witnesses  to  the  attestation  clause 
as  a  declaration  that  the  signature 
was  made  or  acknowledged  in  their 
presence."  Drury  v.  Connell,  177 
111.  43,  quoted  with  approval  in 
Sloan  V.   Sloan,   184  111.  579. 

183  Garcia  y  Perea  v.  Barlea,  5 
N.  M.  458;  23  Pac.  766;  Hays  v. 
Ernest,  32  Fla.  18 :  Cureton  v.  Tay- 
lor, 89  Ga.  490;  Gay  v.  Sanders, 
101  Ga.  601;  Peake  v.  Jenkins,  80 
Va.  293;  Poore  v.  Poore,  55  Kan. 
687;  College  v.  McKinstry,  75  Md. 
188  ;  Simmons  v.  Leonard,  91  Tenn. 
183. 

184  Goods  of  Hatton,  50  L.  J.  P. 
78;  6  P.  D.  204;  30  W.  R.  62;  46 
J.  P.  40. 


182  "It  would  be  difficult,  no  doubt 
to  satisfactorily  define  that  element 
in  the  attestation  of  a  will  which  is 
not  also   present   in   the   mere   sub- 
scription   to    a    will.      No    physical 
act    is    required    in    the   one    which 
is   not  also   required   in  the  other, 
and     it     is    not     clear    what    men- 
tal  act   or   fact  appropriate  to   the 
one.  is   absent   from   the   other,   and 
the   definitions   of   the   most   recent 
lexicographers  do  not  make  it  quite 
perspicuous.     The  Century  Diction- 
ary defines  an  attesting  witness  to 
be  'a  person  who  signs  his  name  to 
an  instrument  to   prove   it  and   for 
the  purpose  of  identifying  the  maker 
of  makers.'     The  Standard  Diction- 
ary defines  attestation  to  be  'the  sub- 
scription by   a  person  of  his  name 
to  a  written  instrument  to  signify 
that  the  same  was  executed  in  his 
presence,  or  that  it  is  correct.'  Since 
it  is  well  settled  in  this  state  that 
it  is  not  necessary  to  the  validity 
of  a  will  that  the  witnesses  at  the 
time  when  they  attest  it,  shall  know 
the   nature   of  the   instrument   that 
they   are   attesting    (Allen   v.   Grif- 


210  LAW    OF    WILLS. 

that  the  will  was  invalid,  even  if  other  competent  witnesses  in 
excess  of  the  requisite  number  witnessed  the  facts  of  execution 
but  did  not  subscribe  their  names,^^^ 

On  the  other  hand,  if  the  number  required  by  law  have  at- 
tested and  subscribed  the  will  in  due  form,  the  will  is  not  in- 
validated by  the  addition  of  other  witnesses  who  are  incom- 
petent, or  do  not  attest  or  subscribe  in  the  manner  required  by 
law;  ^^®  nor  even  by  the  addition  of  the  name  of  one  who  was 
not  requested  by  testatrix  to  sign  as  a  witness.^ ^^ 


§191.     What  determines  competency  of  subscribing  witnesses. 

The  codes  often  provide  that  the  attesting  witnesses  must  be 
"credible"  or  "competent."  These  two  words  are  construed 
to  have  the  same  meaning,^  ^^  and  that  is  that  the  witnesses 
must  be  qualified  to  testify,  under  the  rules  of  evidence  in  force 
at  the  date  of  the  execution  of  the  will,  concerning  the  proof 
of  execution  in  probate  tribunals.^  ^^ 

In  these  statutes,  therefore,  the  word  "credible"  is  not  used 
with  its  technical  meaning,  which  is  simply  worthy  of  belief. 
A  competent  witness  in  the  technical  sense  is  one  whose  evi- 

185  Sloan  V.  Sloan,  184  111.  579.  70   Me.    545 ;    Estep   v.    Morris,    38 

iseConoIy  v.  Gayle,  61  Ala.   116;  Md.  417;  Eustis  v.  Parker,  1  N.  H. 

Ackless  V.  Seekright,  1  111.  76;  Car-  273;    Lord   v.    Lord,    58    N.    H.    7; 

roll   V.   Norton,    3    Bradf.    (N.    Y.)  Welch     v.   Adams,    63    N.    H.    344; 

291;    Boone  v.  Lewis,   103  N.  Car.  Hodgman    v.   Kittredge,   67    N.   H. 

40,  254;     Comb's    Appeal,    105    Pa.    St. 

187  Scattergood  v.  Kirk,  192  Pa.  158 ;  Workman  v.  Dominiek,  3 
St.   263.  Strobh.    (S.   Car.)    589;     Gamble  v. 

188  Amory    v.    Fellowes,    5    Mass.  Butchee,   87    Tex.    643. 

219,  is  one  of  the  leading  cases  on  Of  English  authority,  Bettison  v. 
this  point  decided  in  this  country.  Bromley,  12  East,  249,  supports  the 
It  has  been  followed  and  approved  text;  while  Windham  v.  Chetwynd, 
in  many  Massachusetts  cases :  1  Burr.  414,  holds  that  'credible'  can 
Sears  v.  Dillingham,  12  Mass.  358:  not  mean  competent. 
Hawes  v.  Humphrey,  9  Pick.  350;  isa  In  re  Noble,  124  111.  266; 
Haven  v.  Hilliard,  23  Pick.  10,  and  Harp  v.  Parr,  168  111.  459;  Fisher 
in  other  jurisdictions.  Hall  v.  Hall,  v.  Spence,  1,50  111.  253;  In  re  No- 
18  Ga.  40;  In  re  Noble,  124  111.  266;  ble,  124  111.  266;  Carlton  v.  Carl- 
Fisher  v.  Spence,  150  111.  253;  Harp  ton,  40  N.  H.  14;  Smith  v.  Jones, 
V.  Parr,  168  111.  459;  Jones  v.  Larra-  68  Vt.  132  (and  see  cases  cited  in 
bee,  47  Me.  474;  Smalley  v.  Smalley,  preceding  note). 


911 

LAW     OF     WILLS.  ^-*-^ 


dence  is  admissible.  A  competent  witness  may  not  be  credible ; 
a  credible  witness  may  not  be  competent,  using  the  words  m 
their  technical  sense.  But  such  absurd  results  would  follow 
from  construing  "credible"  in  the  Statute  of  Frauds  and  the 
American  statutes  based  thereon,  as  meaning  "worthy  of  belief 
that  it  has  been  generally  construed  as  "competent." 

The  original  test  of  the  competency  of  an  attesting  witness 
was  his  competency  to  testify  upon  the  facts  of  execution  in 
the  conmion  law  courts.  This  was  because  subscribing  wit- 
nesses were  required  only  for  wills  passing  real  property,  and 
such  wills  were  not  offered  for  probate,  but  their  validity  was 
tested  in  common  law  courts,  and  the  competency  of  ^the  wit- 
nesses was  therefore  determined  by  common  law  rules.^^^ 

At  common  law,  persons  having  a  direct  pecuniary  interest 
in  the  outcome  of  the  litigation  were  disqualified  on  account  of 
interest,  as  was  a  husband  or  wife  of  such  person.  In  certain 
cases  convicted  criminals  were  incompetent.  Persons  under 
certain  ages  and  persons  who  were  non  compos  mentis  were 
incompetent  as  being  unable  to  understand  what  had  happened, 
or  to  relate  it  accurately.^  ^^ 

The  tendency  of  modern  legislation  has  been  to  abolish  the 
disqualifications  growing  out  of  interest  or  conviction  of  crime, 
and  to  make  such  witness  competent,  the  matter  which  formerly 
made  him  incompetent  now  going  solely  to  his  credibility. 

An  interesting  question  is  presented  in  determining  how  far 
a  statutory  change  in  the  rules  of  evidence  in  general  affecte 
the  prior  rules  of  the  competency  of  subscribing  witnesses  to 
wills.  It  is  of  course  entirely  a  matter  of  statutory  construc- 
tion. In  some  jurisdictions  the  statute  applying  to  evidence  m 
general  is  expressly  made  to  include  probate  tribunals,  and 
therebv  to  affect  the  competency  of  witnesses  to  wills.^^^  i^ 
other  jurisdictions  statutory  changes  have  been  made  in  the 
rules  of  evidence  in  the  common  law  courts  so  as  not  to  apply 

190  Hitchcock  V.  Shaw,  160  Mass.  i^^  Lippincott  v.  Wikoff,  54  N.  J. 
140;  Vrooman  v.  Powers,  47  O.  S.  Eq.  107.  (The  statute  here  con- 
191  See  Chap.  XIX,  Evidence  in  strned  applied  in  terms  to  any  pro- 
Probate  and  Contest,  Part  I,  Sees.  ceeding  in  any  court"  and  was  held 
3gQ.3(;3  to  apply  to  probate  tribunals.) 

191  See    Sec.    360-363. 


212  LAW    OF    WILLS. 

to  probate  tribunals ;  and  thus  a  witness  may  be  competent  to 
testify  as  to  facts  in  a  common  law  court  who  is  incompetent 
to  act  as  attesting  witness  to  a  will.^^^ 

Thus,  under  a  Maine  statute,  which  requires  the  witnesses 
to  be  "disinterested,"  it  is  said  that  this  means  "competent" 
and  is  used  to  prevent  general  changes  in  the  law  of  evidence 
from  affecting  the  law  of  wills.^^^ 

§192.     Time  at  which  competency  must  exist. 

The  attesting  witness  must  be  competent  at  the  time  that  he 
attests  and  subscribes  his  name.  If  he  is  competent  then  and 
afterwards  becomes  incompetent,  the  will  is  not  thereby  in- 
validated.^^^ 

If,  on  the  other  hand,  he  is  then  incompetent,  and  afterwards 
becomes  competent,  the  weight  of  authority  is  that  he  can  not 
be  counted  among  the  attesting  witnesses  of  the  will.^^^ 

Some  jurisdictions,  however,  hold  that  a  witness  who,  by 
reason  of  being  a  beneficiary  under  the  will,  is  incompetent  at 
the  time  of  its  execution  may,  by  releasing  his  interest  there- 
under, become  a  competent  witness  at  the  probate  of  the  will.^^'^ 


i»3  Sparliawk    v.    Sparhawk,     10  riman,  50  X.  H.  25 ;  Morrill  v.  Mor- 

All.    (Mass.)    155;    Sullivan  v.   Sul-  rill,  53  Vt.  74. 

livan,  106  Mass.  474;  Hitchcock  v.  i96  Fisher  v.  Spence,  150  111.  253; 
Shaw,  160  Mass.  140.  Morgan  v.  Ingram,  11  Ired.  (N.  C.) 
194  Jones  V.  Larrabee,  47  Me.  308 ;  Warren  v.  Baxter,  48  Me.  193; 
474;  Warren  v.  Baxter,  48  Me.  Patten  v.  Tallman,  27  Me  17 ;  Spar- 
103.  hawk  v.  Sparhawk,  10  Allen  (Mass.) 
193  Holdfast  V.  Downing,  2  Strange  157  ;  In  re  Holt's  Will,  56  Minn. 
1253;  Thorpe  v.  Bestwick,  50  L.  33;  Hine  v.  McConnel,,  2  Jones' 
,  J.  Q.  B.  320;  6  Q.  B.  D.  311;  44  L.  Law  (N.  C.)  455;  Carlton  v.  Carl- 
T.  180;  Slingloff  v.  Bruner,  174  111.  ton,  40  N.  H.  14;  Vrooman  v.  Pow- 
501 ;  Gill's  Will,  2  Dana  (Ky.)  447;  ers,  47  O.  S.  191 ;  Workman  v.  Domi- 
Patten  V.  Tallman,  27  Me.  17 ;  War-  nick,  3  Strobh.  (S.  Car.),  589; 
Ten  V.  Baxter,  48  Me.  193;  Jenkins  Smith  v.  Jones,  68  Vt.  132. 
V.  Dawes.  115  Mass.  599;  Sullivan  i97  Lowe  v.  Joliflfe,  1  W.  Bla.  365; 
V.  Sullivan,  106  Mass.  474 ;  Pease  V.  Goodtitle  v.  Welford,  Dougl.  139; 
Allis,  110  Mass.  157;  Sullivan  v.  or  by  statute,  Miltenberger  v.  Mil- 
Sullivan,  114  Mich.  189;  Holt's  tenberger,  78  Mo.  27;  Grimm  V. 
Will,  50  Minn.  33;  Carlton  v.  Carl-  Tittman,  113  Mo.  56. 
ton,  40  N.  H.  14;   Stewart  v.  Har- 


LAW    OF    WILLS.  213 

§193.     Who  are  competent  attesting  witnesses. 

The  general  rule  is  that  any  person  of  sound  mind,  and  old 
enough  to  receive  a  just  impression  of  the  facts  of  execution 
and  to  relate  them  ti-uly,  may  act  as  an  attesting  witness.^  ^^ 
Thus,  a  youth  of  twenty  may  act  as  an  attesting  witness,  mi- 
nority not  being  a  disqualification.^^^ 

This  general  rule  is  so  well  settled  as  to  be  rarely  questioned. 

By  far  the  greatest  amount  of  litigation  on  this  subject  arises 
over  the  ahnost  uniform  exception  to  this  general  rule.  This 
exception  is  that  no  person  having  an  immediate  beneficial  in- 
terest under  the  will  can  act  as  an  attesting  witness  thereto.^"*^ 

This  is  the  usual  form  of  stating  the  disqualification.  It  is, 
of  course,  physically  possible  for  such  persons  to  write  their 
names  as  subscribing  witnesses  to  the  will  in  which  they  are 
beneficially  interested.  The  meaning  of  the  rule  is,  of  course, 
that  even  though  they  act  as  attesting  witnesses,  they  can  not 
be  counted  as  such  witnesses  to  make  up  the  number  required 
by  statute;  and  if  the  number  is  not  made  up  without  them 
the  will  is  invalid. 

In  Tennessee,  however,  while  a  beneficiary  can  not  be  a  sub- 
scribing witness  to  a  will,  he  may  prove  an  unattested  testa- 
ment of  personalty.2*^i  So,  where  a  testament  of  personalty  is 
good  without  subscribing  witnesses,  a  legatee  to  whom  no  realty 
is  devised  may  act  as  attesting  witness  to  a  will  disposing  of 
both  realty  and  personalty.^®^ 

§194.     Who  are  beneficiaries. — Nature  of  interest. 

The  beneficiaries  mider  a  will,  within  the  meaning  of  this 
rule,  are  those  who  have  a  direct  and  immediate  beneficial  in- 

i9«  See      discussion      of      subject  v.  Stagner,  55  Tex.  393.  These  cases 

mostly  obiter  in  Carlton  v.  Carlton,  are  only  a  few  out  of  the  many  that 

40  N.  H.  14.  might  be  cited.     The  cases  on  this 

190  Jones  V.  Tebbetts,  57  Me.  574.  subject   in    the    following   notes    all 

200  Clark  v.  Hoskins,6  Conn.  106;  sustain  the  proposition  in  the  text. 
Frink  v.  Pond,  46  N.  H.  125;  Lord  201  Franklin  v.  Franklin,  90  Tenn. 

V.  Lord,  58  N.  H.  7  :  Allison  v.  Al-  44. 

lison,  4  Hawks  (N.  C.)   141;  Nixon  202  Walker    v.    Skeene,    3    Head. 

V.  Armstrong,  38  Tex.  296;  Fowler  (Tenn.)    1. 


214  LAW    OF    WILLS. 

terest  therein.  This  interest  must  be  a  real  and  not  an  apparent 
one  in  order  to  incapacitate  the  witness.  Thus,  an  heir  could 
act  as  attesting  witness  to  a  will  which  gave  him  a  less  share 
of  the  estate  than  he  would  have  taken  had  the  ancestor  died 
intestate — a  will,  in  other  words,  which  wholly  or  partially 
disinherited  the  witness."*^^ 

The  interest  must  further  be  beneficial.  Thus,  a  trustee  can 
act  as  an  attesting  witness  to  a  will  whereby  a  devise  is  made  to 
him  in  trust  for  others.^*'^  But  where  trustee  was  entitled  to 
commissions  it  was  held  that  these  commissions  disqualified 
him  as  a  witness  f^^  and  a  trustee  is  competent  even  if  the  real 
beneficiaries  are  his  children.^*^^ 

So,  a  gift  to  a  church  "to  be  disposed  of"  as  A  should  wish 
was  held  not  to  be  a  beneficial  gift  to  A.^*''' 

A  beneficial  interest  further  might  be  so  remote  ihat  even 
though  some  indirect  benefit  might  accrue  to  the  witness,  it  was 
not  recognized  by  the  common  law  as  a  disqualifying  interest. 

The  interest  must  be  one  which  under  the  rules  of  evidence 
in  force  in  common  law  jurisdictions  was  recognized  as  inmie- 
diate.  Thus,  an  inhabitant  of  a  town  could  act  as  a  subscribing 
witness  to  a  will  by  which  a  devise  was  given  to  such  town,^°^ 
and  a  member  of  a  religious  corporation  could  act  as  attesting 
witness  to  a  will  by  which  a  devise  was  given  to  such  cor- 
poration,""^  as  could  also  an  employee  of  such  corporation.^^ *^ 

203  Smalley  v.  Smalley,  70  Me.  207  Greswell  v.  Creswell,  37  L. 
545;  Sparhawk  v.  Sparhawk,  10  J.  Ch.  521;  L.  R.  6  Eq.  69;  18  L. 
Allen  (Mass)  157;  Grimm  v.  Titt-  T.  392;  16  W.  R.  699.  (Hence  A's 
man,  113  Mo.  56;  Moore  v.  McWil-  wife  could  act  as  a  subscribing  wit- 
liaras,    3    Rich.    Eq.    (S.    Car.)     10;  ness. 

Hoppe's   Will,    102  Wis.   54 ;    78  N.  208  Cornwell     v.     Isham,     1     Day 

W.    183;    Clark    v.    Clark,    54    Vt.  (Conn.)     35;    Jones   v.    Habersham, 

489;     Maxwell    v.    Hill,    89    Tenn.  63   Ga.    146;    Marston   v.   Judge   of 

594.  Probate,  ?  9  Me.  25  ;  Hawes  v.  Hum- 

The    husband    of    a    disinherited  phrey,  9  Pick.    (Mass.)    3.50;   Hitch- 

■daughter    is    therefore     competent.  cock  v.  Shaw,  160  Mass.   140;   Eus- 

.SlingloflF  V.  Bruner,   174  111.  561.  tis  v.  Parker,  1  N.  H.  273. 

204  Loring     v.      Park,      7       Gray  209  Jones    v.    Habersham,    63    Ga. 
(Mass.)    42;    Marston   v.   Judge   of  146;  Warren  v.  Baxter,  48  Me.  193; 

Probate,   79  Me.  25.  Haven  v.  Hilliard,  23  Pick.   (Mass.) 

205  Allison    V.    Allison,    4  Hawks       10;  Will's  Estate,  67  Minn.  335. 
(N.  Car.)    141.  210  Comb's    Appeal,    105    Pa.    St. 

206  Key  V.  Weatherlee,  43  S.  Car.       155. 
414. 


215 

LAW    OF    WILLS. 


So  a  stockholder  in  a  corporation  owning  a  hall  is  a  com- 
petent witness  to  a  will  in  which  a  legacy  was  given  to  secure 
the  use  of  such  hall  for  objects  of  public  interest.^^^ 

This  interest  is  not  necessarily  an  absolute  one,  however. 
Thus,  where  a  devise  was  made  to  A  if  he  survived  testator 
and  if  he  died  before  testator,  then  to  B,  it  was  held  that  B  had 
an  immediate  beneficial  interest  under  the  will,  and  could  not, 
therefore,  be  counted  among  the  subscribing  witnesses.  By 

statutes,  in  some  jurisdictions,  however,  a  remainder-man  under    . 
the  will  can  act  as  attesting  witness.^^^ 

§195.     Effect  of  release. 

The  attempt  is  often  made  to  restore  the  competency  of  an 
attesting  witness  who  is  incompetent  because  a  beneficiary,  by 
having  him  release  all  interest  under  the  will. 

The  weight  of  authority  is,  as  before  said,  that  the  witness 
must  be  competent  at  the  time  of  attestation.  From  this  view 
it  follows  that  such  attempt  to  restore  competency  to  the  witness 
by  a  release  executed  after  the  attestation,  accomplishes  nothing, 
and  the  beneficiary  can  not  be  counted  among  the  subscribing 
witnesses.  Some  jurisdictions,  however,  take  the  view  that  if  the 
witness  is  competent,  on  the  ground  of  interest,  either  at  the 
attestation  of  the  will  or  at  the  time  that  it  is  produced  for  pr(> 
bate  he  can  be  counted  among  the  attesting  witnesses;  and 
accordinglv  such  jurisdictions  hold  that  a  beneficiary,  on  re- 
leasing his  interest,  becomes,  as  far  as  interest  is  concerned, 
a  competent  witness.-^* 
§196.     Effect  of  modem  statutes. 

The  competency  of  a  beneficiary  as  an  attesting  witness  is 
generally  modified  by  statute.  Many  jurisdictions  have  adopted 
statutes 'substantially  to  the  effect  that  if  a  beneficiary  acts  as 
a  subscribing  witness  to  a  will,  and  the  will  can  not  be  proved 

2iiMarston  v.  Judge  of  Probate,      Garland  v.  Crow,  2  Bail.    (S.  Car.) 

79   Me.    25.  24.  ,        ,  ,   ^      ^   .  ,    ^iff 

2X2  Trinitarian,   etc.,   Society.  Ap-  -*  So  by  statute.  Gnmm  v.  Titt- 

ellant    91   Me.   416.  man,  113  Mo.  56,  citing  and  follow- 

J  r\  t"o    Alo    4J.8  •       infT     In  re  Wilson,  103  N.  Y.  374. 

2i3Kumpe  V.  Coons,  63  Ala.  44» ,       mg    iri  ^e  wi        , 


21d  I^AW    OF    WILLS. 

without  his  testimony  as  a  subscribing  witness,  the  devise  or 
be(^uest  to  him  shall  be  void.  A  provision  is  generally  added 
that  he  shall  take  such  share  as  he  would  have  received  if  the 
testator  had  died  intestate,  so  much  as  does  not  exceed  the  inter- 
est given  him  by  the  will.^^^  Where  the  will  can  be  proved 
without  a  certain  subscribing  witness,  a  legacy  to  him  is  not 
aifected  by  this  statute.*  Thus,  where  a  legacy  was  left  to  a 
subscribing  witness  by  will,  and  the  will  was  afterwards  repub- 
lished by  a  codicil  to  which  legatee  was  not  a  witness,  it  was 
held  that  his  legacy  was  not  affected  by  the  fact  that  he  acted 
as  a  subscribing  witness  to  the  will.  Nor  was  his  right  to  take 
aifected  by  the  fact  that  he  subsequently  acted  as  witness  to 
another  codicil.  ^  ^  ^ 

Thus,  where  a  legacy  was  left  to  a  subscribing  witness  by 
w^ill,  and  the  will  was  afterwards  republished  by  a  codicil  to 
which  legatee  was  not  a  witness,  it  was  held  that  his  legacy  was 
not  affected  by  the  fact  that  he  acted  as  a  subscribing  witness 
to  the  will,  xior  was  his  right  to  take  affected  b}'  the  fact  that 
he  subsequently  acted  as  witness  to  another  codicil.^^^ 

The  effect  of  such  statutory  provisions  is  to  make  such  attest- 
ing witness  competent  by  preventing  him  from  taking  any  in- 
terest under  the  will,  thus  recognizing  that  the  witness  must  be 
competent  at  the  time  of  the  attestation. 

In  other  jurisdictions  the  statute  gives  to  the  beneficiary 
witness  the  option  of  renouncing  his  interest  or  of  invalidating 
the  will.217 

These  statutes  are  never  to  be  extended  beyond  their  express 
terms.  Thus,  a  statute  of  this  sort  referring  to  written  wills 
has  no  application  to  witnesses  to  nuncupative  wills.^-^^ 

§197.     Husband  or  wife  of  beneficiary Common  law  rule. 

Under  the  rules  of  the  common  law  a  husband  or  wife  could 
not  testify  when  the  other  would  be  excluded  from  testifying 
by  reason  of  interest.     This  being  the  law  except  where  mod- 

215 /n   re   Trotter    (1899),    1    Ch.  *  Davis  v.  Davis,  43  W.  Va.  300, 

764;  Denne  v.  Wood,  4  L.  J.  Ch.  57;  27  S.  E.  323. 

Perkins   v.   Windham,   4   Ala.   634;  2i6/n    re    Trotter    (1899)     1    Ch. 

Kumpe  V.  Coons,  63  Ala.  448 ;  Clark  764 ;    In  re  Owen,   56   N.  Y.   Supp. 

V.  Hoskins,  6  Conn.  106;   Elliott  v.  853. 

Brent,  0  Mp'-k.   (D.  C.)   98 ;  Harp  v.  217  Miltenberger    v.    Miltenberger, 

I'arr,  168  Til.  459;  Fisher  v.  Spence,  78  Mo.  27;   Grimm  v.  Tittman,  113 

150  111.   253;   In  re  Noble,   124   111.  Mo.    56;    Nixon    v.    Armstrong,    38 

266;   Grimm  v.  Tittmann,   113  Mo.  Tex.  296. 

56;    Key  v.  Weatherlee,  43  S.  Car.  sisVrooman  v.  Powers,  47   O.   S. 

414;    49    Am.    St.   Rep.   846;    Clark  191. 
V.  Clark,  54  Vt.  489:  Croft  v.  Croft, 
4    nvatt     rvn  ^     ins 


LAW     OF     WILLS. 


217 


ified  by  statute,  a  husband  or  wife  can  not  act  as  attesting 
witness  to  a  will  under  which  the  other  is  a  beneficiary.^i^ 

Since  the  competency  of  attesting  witnesses  is  to  be  deter- 
mined as  of  the  date  of  the  will,  the  subsequent  intermarriage 
of  a  beneficiary  and  a  subscribing  witness  does  not  render  such 
witness  incompetent  or  avoid  the  devise.^^o  But  there  is  no 
rule  of  law  forbidding  the  husband  of  testator's  sister,  who  is 
not  a  beneficiary  under  the  will,  to  act  as  a  subscribing  witness 
to  the  will.  Since  he  is  competent,  he  can  testify  at  probate, 
and  the  certificate  of  his  oath  can  be  introduced  at  contest,  even 
where  his  wife  is  a  contestant.^^-^ 

§198.     Effect  of  modern  statutes. 

This  rule  of  law  is  affected  by  statutes  of  two  different  classes. 

a.  The  first  class  of  statutes  provides  that  a  husband  or  wife 
may  be  a  competent  witness  in  a  case  where  the  other  is  a 
party  in  interest.  This  is  generally  effected  by  a  sweeping 
provision  that  all  persons  are  competent  witnesses,  with  the 
exceptions  therein  enumerated.^^^ 

If  such  a  statute  is  so  drawn  as  to  apply  to  probate  matters, 
as  well  as  to  ordinary  common  law  jurisdictions,  its  effect  is  to 
allow  a  husband  or  wife  to  act  as  an  attesting  witness  to  a  will 
by  which  the  other  is  a  beneficiary ;   or,  if  after  passage  of  such 

219  Hatfield  v.  Thorp,  5  B.  &  Aid.  Gamble  v.  Butchee,  87  Tex.  643.  No 
589;  Fortune  v.  Buck,  23  Conn.  1;  distinction  is  made  under  these  stat- 
Fisher  v.  Spence,  150  111.  253;  Sul-  utes  between  -wills  and  testaments. 
livan  V.  Sullivan,  106  M&ss.  474;  The  statute  applies  equally  to  dis- 
Winslow  V.  Kimball,  25  Me.  493;  position  of  personalty,  Hawkins  v. 
Hodgman  v.  Kittredge,  67  N.  H.  Hawkins,  54  lo.  443;  and  of  realty, 
254 ;  Key  V.  Weatherebee,  43  S.  Car.  Bates  v.  Officer,  70  lo.  343.  The 
414;    49   Am.   St.   Hep.   846.  legacy  given  to  the  spouse  of  such 

220  Thorpes  v.  Bestwick,  50  L.  J.  attesting  witness  is  not  held  void  in 
Q.  B.  320;  6  Q.  B.  D.  311;  44  L.  T.  all  jurisdictions.  Holt's  Will,  56 
180 ;  29  W.  R.  631 ;  45  J.  P.  440.  Minn.    33.      And   the   fact   that  the 

221  SlinglofT  V.  Bruner,  174  HI.  spouse  is  a  competent  attesting  wit- 
561.  ncss    does    not    always    render    him 

222  Hawkins  v.  Hawkins,  54  lo.  competent  generally  on  contest  if 
443;  Bates  v.  Officer,  70  To.  343;  the  other  spouse  is  a  party.  Holt's 
Holt's   Will,   56   Minn.   33;    Lippin-  Will,  56  Minn.  33. 

cott  v.   Wikoff,   54   N.   J.   Eq.    107; 


218  LAW     OF     WJLLS. 

a  statute,  the  statutes  which  control  probate  matters  recognize 
such  rule  of  comj^etencv  directly  or  indirectly,  the  husband  or 
wife  of  a  beneficiary  is  rendered  competent.^^^ 

Thus,  a  statute  making  husband  or  wife  competent  where 
the  other  is  a  party  in  interest  "in  any  proceeding  in  any 
court"  is  held  to  make  such  husband  or  wife  a  competent  wit- 
ness to  a  will  by  which  the  other  is  made  a  beneficiary.^^'*  But 
if  the  statute  refers  only  to  common  law  tribunals,  and  is  not 
recognized  afterward  by  the  statutes  which  control  probate 
tribunals,  such  statute  does  not  alter  the  common  law  rule  of 
the  incompetency  of  such  husband  or  wife  to  act  as  attesting 
witness  to  a  will  under  which  the  other  spouse  is  a  beneficiary.^^^ 

6.  The  second  class  of  statutes  affecting  the  competency  of 
husband  or  wife  provides  that  bequests  or  devises  to  an  attesting 
witness  without  whom  the  will  can  not  be  proved,  are  void. 
There  is  a  difference  of  judicial  opinion  as  to  the  effect  of 
such  statutes  upon  the  competency  of  the  husband  or  wife  of 
a  beneficiary  as  an  attesting  witness.  Some  jurisdictions  hold 
that  such  statutes  are  not  to  be  extended  in  meaning  beyond 
their  express  terms,  and  hence  that  they  do  not  make  such 
husband  or  wife  a  competent  witness.^^® 

Other  jurisdictions,  by  a  very  liberal  construction,  treat  a 
devise  to  husband  or  wife  as  a  beneficial  interest  of  the  other. 
Hence,  under  such  statutes,  they  hold  that  the  devise  to  the 


223  See  cases  in  preceding  note.  Kittredge    v.    Hodgman,    67    N.    H. 

224  Lippincott  v.  Wikoff,  54  X.  J.  254;  32  Atl.  158. 

Eq.  107.      (Even  if  such  subscribing  Referring    to    the    opposite    view 

witness  is  also  executor.)  hereinafter  given,  the  court  said,  in 

225  Fisher  v.  Spence,  150  111.  253;  Sullivan  v.  Sullivan,  106  Mass.  474: 
Sullivan  v.  Sullivan,  106  Mass.  474.  "It  is  founded  rather  upon  a  con- 
Thus  in  Kentucky  it  was  held  that  jecture  of  unexpressed  intent  of  the 
the  code  of  civil  procedure  did  not  legislature,  or  a  consideration  of 
affect  the  competency  of  witnesses  what  they  might  wisely  have  enact- 
to  a  will.  Mercer  v.  Mackin,  14  ed,  than  upon  a  sound  judicial  ex- 
Bush.  434.  position    of    the    statute    by    which 

226  Fortune  v.  Buck,  23  Conn.  their  intent  has  been  manifested.". 
1;  Sloan's  Estate,  184  111.  579;  Quoted  in  Fisher  v.  Spencer,  150 
Fisher  v.  Spence,  150  111.  253;   Sul-  111.  253. 

livan   V.    Sullivan,    106   Mass.   474; 


219 

LAW     OF     WILLS. 


husband  or  wife  is  void,  and  that  the  attesting  witness  is  com- 

^^ir*some  jurisdictions  statutes  have  been  passed  which,  in 
express  terms,  make  void  gifts  to  the  husband  or  wife  of  an 
attesting  witness.^^^ 

While  some  difficulties  arise  under  these  statutes,  they  are 
only  the  uniform  result  of  a  modification  of  the  common  aw 
by  statutes  which  are  framed  without  a  full  and  complete 
understanding  of  their  bearing  and  effect  upon  the  pre-existmg 
rules  of  law.  Where  the  legislature,  while  modifymg  the 
general  law  of  evidence,  has  expressly  provided  what  effect  such 
statute  shall  bave  upon  the  competency  of  subscribmg  wit- 
nesses to  a  will,  little  or  no  litigation  upon  that  subject  arises. 

§199.     Competency  of  heir  of  beneficiary.— Probate  j^dge,  ex- 
ecutor, etc. 

The  son  of  a  beneficiary  has  no  immediate  interest  under 
the  will.  Hence  he  may  act  as  an  attesting  witness.^^^  This 
is  true  even  where  the  beneficiary  dies  before  contest,  so  that 
such  subscribing  witness  is  directly  affected  by  the  outcome  of 
the  litigation,  since  he  was  competent  at  the  execution  of  the 
will.^^''^  So  may  the  probate  judge  before  whom  the  will  is 
to  be  proved.231 

Where  the  person  named  in  the  will  as  executor  subscribes 
the  will  as  an  attesting  witness  his  competency  is  a  subject  of 
some  doubt.  The  objections  to  his  competency  rest  on  two 
different  grounds.  First.  That  he  has  such  an  interest  m 
his  commissions  that  he  is  a  beneficiary;  second,  that  where 
by  the  law  of  procedure,  the  executor  is  personally  liable  lor 
costs  if  the  will  is  refused  probate,  he  has,  irrespective  of  his 

227Wi<^an   V.   Rowland,    U    Hare  =^- Nash    v.    Reed     46    Me.    168; 

157.    1    Eq     R    213;    17   Jur.   910;  Jones  v.  Tebbetts,  57  Me.  572;  Max- 

1  W    R    383;   Jackson  v.  Wood,   1  well  v.  Hill,  89  Tenn.  584^ 
JoL.  Cas.  163 ;  Jackson  v.  Durland,  -o  Maxwell  v.  Hill    89  Tenn.  584; 

2  Johns.  Cas.  (N.  Y.),  314;   Wins-  -^  Panaud  v.  ^^^^^l^t''^' 
low  V.  Kimball,  25  Me.  493 ;  Key  v.  M'Lean  v.  Barnard,  1  Root     Conn. 
Weatherslee    43  S.  Car.  414.  462;    Ford's   Case,   2  Ro«; jConn.) 
weatnersiee,  to  c..  Patten  v.  Tallman,  27  Me.  17. 

228  Giddings   v.    Turgeon,    58    Yt.       /^^ ,  fatten 
106;    So    1    Vict.    C.    26,    Sec.    15. 


220  LAW    OF    WILLS, 

commissions  a  direct  interest  in  the  result  of  the  case.  Ac- 
cordino-ly,  in  some  of  the  earlier  cases  it  was  held  that  one 
named  as  executor  had  such  an  interest  in  his  commissions 
that  he  was  a  beneficiary  under  the  will,  and  thus  incompetent 
as  a  subscribing  witness.^^^ 

Under  this  theory  the  incompetency  existed  at  the  time  of 
execution  and  could  not  be  removed  by  his  subsequent  renim- 
ciation  of  his  office.^^^  While  under  this  ruling  an  executor 
was  not  a  competent  witness  to  a  testament  of  personalty,  he 
was  treated  as  a  competent  witness  to  a  will  of  realty.^^^ 

Tinder  the  English  statute  removing  the  interest  of  a  sub- 
scribing witness,^^^  it  was  finally  held  that  an  executor  was  a 
competent  witness  to  a  mixed  will  of  realty  and  personalty.^^^ 
On  account  of  his  liability  for  costs  an  executor  has  been  held 
to  be  an  incompetent  subscribing  witness.^^'^ 

The  reasons  given  by  the  older  cases  for  holding  an  executor 
to  be  incompetent  have  been  entirely  abandoned  by  the  courts. 
His  commissions  are  looked  upon  as  merely  a  compensation 
for  services  rendered,  and  as  givi"ng  him  no  financial  interest 
in  the  probating  of  the  will.  He  is,  as  a  rule,  not  personally 
responsible  for  costs ;  and  further,  in  most  states  this  ground 
for  incompetency  is  removed  by  statute.  Accordingly,  it  is  now 
held  by  the  great  weight  of  modern  authority  that  an  executor 
has,  at  the  time  of  the  execution  of  the  will,  no  such  beneficial 
interest  thereunder  as  renders  him  incomptent.^^^     It  has  been 

232  Tucker  v.  Tucker,  5  Ired.  L.  (S.  Car.)  505,  modifying  Taylor  v. 
(N.  Car.)  IGl;  Morton  v.  Ingra-  Taylor,  1  Rich.  L.  (S.  Car.)  531. 
ham,  11  Ired.  L.  (N.  Car.)  368;  237  Adams  v.  Sandige,  29  Ga.  563. 
Taylor  v.  Taylor,  1  Rich.  L.  (S.  (In  this  case  the  executor  deposited 
Car.),  531;  Wilkins  v  Taylor,  8  the  money  for  the  costs  before  he 
Rich.    Eq.     (S.    Car.)     291.  offered    himself   as    a   witness;    but 

233  Morton  v.  Ingraham,  11  Ired.  it  was  held  that  he  was  still  dis- 
L.   (K  Car.)   368.  qualified    because    of    his    right    to 

234  (Wills  of  personalty.)  Work-  recover  the  costs  from  the  estate,  if 
man  v.  Dominick,  3  Strobh.  (S.Car.)  the  will  were  admitted  to  probate.) 
589;  Taylor  v.  Taylor,  1  Rich.  L.  238  Spiegelhalter's  Will,  1  Pemi 
(S.  Car.)  531.  (Will  of  realty.)  (Del.)  5 ;  Meyer  v. Fogg, 7  Fla.  292 
Henderson  V.  Kenner,  1  Rich.  L.  ( S.  Baker  v.  Bancroft.  79  Ga.  672 
Car.)   474.  Jones    v.    Larrabee,    47    Me.    474 

235  25  Geo-  n.  C.  6.  Sears  v.  Dillingham.  12  Mass.  358 
23",  Noble  V.  Burnett,  10  Rich.  L.       Wyman    v.    Symmes.    13    All.    153 


LAW    OF    WILLS. 


221 


said,  "This  principle  is  too  well  settled  to  justify  discussion."  ^^® 

The  reason  for  holding  an  executor  competent  has  been  said 
in  some  decisions  to  be  that,  as  the  will  is  necessarily  offered 
for  probate  before  the  executor  is  appointed,  he  is  not  then  an 
executor  and  may  never  be.^^*^ 

Where  an  executor  may  be  competent,  his  wife  is,  of  course, 
competent;  ^■^^  and  his  brother  is  also  competent.^'*^ 

One  who  signs  testatrix's  name  to  her  will  at  her  request 
may  also  act  as  a  subscribing  witness  to  such  will.^^^ 

Originally,  a  creditor  of  testator  could  not  act  as  an  attesting 
witnesses  where  the  will  benefited  creditors  by  making  the  debts 
a  charge  upon  the  real  estate.^'*'*  This  rule  is  now  practically 
obsolete,  either  by  statutes  expressly  making  such  creditors 
competent  witnesses,  or  by  statutes  which  charge  the  real  estate 
of  all  testators  with  their  debts.^'^^ 

Under  modern  statutes  a  convict  may  act  as  an  attesting 
witness.^^® 

§200.     Husband  of  testatrix. 

Under  the  policy  of  the  common  law  a  husband  could  not  be 
an  attesting  witness  to  his  wife's  will ;  nor  could  a  wife  be  an 
attesting  witness  to  her  husband's  will.^^'^  This  rule  has  been 
modified  by  statute  in  many  jurisdictions. 

Holt's   Will,    56   Minn.    33;    Rucker  155 ;  Lyon's  Will,  96  Wis.  339. 

V.    Lambdin,    12    S.    &    M.     (Miss.)  242  Lord  v.  Lord,  58  N.  H.  7. 

230;    Stewart   v.    Harriman,    56   N.  243^0;  parte  Leonard,  39   S.  Car. 

H.  25;  Hodgman  v.  Kittredge,  67  N.  518. 

H.  254 ;    Society,  etc.,  v.  Loveridge,  244  Blackstone's  Comra.,  Bk.  3,  p. 

70    N.    Y.    387;    Lippincott   v.    Wi-  377. 

koff,    54    N.    J.    Eq.    107;    Jordan's  245  Young's    Will,    123    N.    Car. 

Estate,  161  Pa.  St.  393;   Snedekers  358,   disting.   Pepper  v.   Broughton, 

V.  Allen,  1  Penn.  24;   Lyon's  Will,  80  N.  Car.  251;  and  see  local  stat- 

96  Wis.  339.  utes. 

239  Holt's  Will,  56  Minn.   33.  246  Xoble's    Estate,    124   111.   266; 

240  Hawley  v.  Brown,  1  Root  Diehl  v.  Rogers,  169  Pa.  St.  316 
(Conn.)      494      (executor   had      re-  (after  pardon). 

nounced)  ;   Millay  v.  Wiley,  46  Me.  247  Pease  v.  Allis,  110  Mass.  157; 

230.  Dickinson  v.  Dickinson,  61   Pa.  St. 

241  Stewart   v.    Harriman,    56    N".  401. 
H.   25;    Piper   v.   Moulton,    72    Me. 


222  LAW    OF    WILLS. 

§201.     What  subscribing  witnesses  are  required  to  attest. 

The  subscribing  witnesses  are  required  by  statute  for  the  pur- 
pose of  attesting  certain  requisites  of  the  will.  "What  these 
requisites  are  depends  upon  the  local  statute.  In  most  jurisdic- 
tions the  subscribing  witnesses  are  required  for  the  purpose  of 
attesting :  ( 1 ) ,  the  signature  of  the  testator,  and  (  2  ) ,  the  capac- 
ity of  the  testator  to  make  a  will.  In  a  few  jurisdictions  they 
are  also  required  to  attest  the  publication  of  the  will. 

§202.     The  signature  of  testator  to  be  attested  by  witnesses. 

The  subscribing  witnesses  are  required  to  attest  that  the  sig- 
nature of  the  testator  was  made  by  him,  or  by  some  person 
lawfully  authorized  by  him,  as  before  explained,  in  the  presence 
of  the  witnesses.^^^  The  only  point  which  needs  discussion  in 
this  connection  is  the  meaning  of  the  word  'presence'.  This  will 
be  discussed  when  the  word  "presence"  is  considered  as  used  of 
witnesses  subscribing  their  names  in  the  presence  of  testator.^^** 

§203.     Acknowledgment  of  signature  by  testator  to  be  attested. 

Most  statutes  provide  as  an  alternative  to  the  signature  by 
testator  in  the  presence  of  the  subscribing  witnesses,  that  the 
testator  may  acknowledge  in  the  presence  of  the  witnesses,  his 
signature  made  out  of  their  presence.^^^  This  alternative  is 
allowed  only  when  the  provisions  of  the  statute  permit  it.  In 
jurisdictions  where  the  statute  is  modelled  upon  the  Statute  of 
Frauds,  29  Car.  II,  c.  3,  Sec.  5,  the  requirement  of  which  is 
that  the  will  be  "attested  and  subscribed  in  his  presence  by 
three  or  four  credible  witnesses,"  it  is  well  settled  by  judicial 
construction  that  testator  may,  if  he  chooses,  sign  his  name  out 
of  the  presence  of  the  witnesses  and  afterwards  make  acknowl- 

248  Ela    V.     Edwards,     16     Gray  249  See  Sec.  209,  et  seq. 

(Mass.)     91;    Jackson    v.    Jackson,  230  Orimm    v.    Tittman,    113    Mo. 

39  N.  Y.   153;   Woolley  v.  Woolley,  56;    Skinner   v.   Am.   Bible   Soc.   92 

95  N.  Y.  231 ;  Keyl  v.  Feuchter,  56  Wis.  209.     See  notes  to  Sec.  202. 
O.    S.    424 ;     Simmons    v.    Leonard, 
91    Tenn.    183. 


LAW     OF     WILLS. 


223 


edgment  before  them.^^^  But  where  the  statute  requires  that 
the  will  must  be  attested  and  subscribed  by  witnesses  who  saw 
testator  sign,  acknowledgment  will  not  be  sufficient  unless  the 
statute  further  adds  'or  who  heard  him  acknowledge'  his  sig- 
nature, or  words  substantially  equivalent  thereto.^^^ 

As  said  before,  this  alternative  is  added  by  the  codes  of  most 
states.^^^  If  the  witnesses  neither  see  the  testator  subscribe,  nor 
hear  him  acknowledge,  the  Avill  is  invalid. 


254 


§204.     Acknowledgment  of  signature  by  other. 

This  statute  allowing  testator  to  acknowledge  his  signature 
before  attesting  witnesses,  does  not  relax  the  rule  as  to  the 
actual  signing  of  the  will.  The  will  must,  in  most  jurisdictions, 
as  said  before,  be  signed  by  the  testator  or  by  some  person  in 
his  presence  by  him  duly  authorized.  If  testator  acknowledges 
a  signature  to  attesting  witness  as  his,  a  prima  facie  presump- 
tion arises  that  the  signature  was  affixed  in  the  form  required 
by  law.^^^  But  if  the  evidence  shows  that  the  will  was  signed 
neither  by  testator  nor  by  some  person  in  his  presence,  duly  au- 
thorized, the  will  is  invalid,  even  though  testator  has  acknowl- 
edged such  signature  as  his  own  before  attesting  witnesses.^^® 

Where  the  will  has  been  signed  in  the  presence  of  testator  by 

251  Ellis  V.  Smith,  1  Ves.  Jr.  11;  Shelley,  6  O.  S.  307;  Simmons  v. 
Morrison  v.  Tourman,  18  Ves.  Jr.  Leonard,  91  Tenn.  183;  Roberts  v. 
183;  O'Neill  v.  Owen,  25  Can.  L.  J.  Welch,  46  Vt.  164;  Allen  v.  Grif- 
376;  9  Can.  L.  J.  297.  fin,    69   Wis.   529. 

252  So  in  New  Jersey  under  the  254  Reed  v.  Watson,  27  Ind.  443 ; 
act  of  1814.  Compton  v.  Milton,  12  Keyl  v.  Feuchter,  50  0.  S.  424;  Sim- 
N.  J.  L.   70;   Mundy  v.  Mundy,   15  mons  v.  Leonard,  91  Tenn.  183. 

N.   J.   Eq.   290;    McElwaine's   Will,  25.-,  Toomes's  Estate,  54  Cal.  509 

18  N.  J.  Ch.  499.  Cleveland  v.   Spilman,  25  Ind.   95 

253  Canada's  Appeal,  47  Conn.  450  ;  Walton  v.   Kendrick,   122  Mo.   504 
Crowley    v.    Crowley,    80    111.    469;  Robins    v.    Coryell,    27    Barb.    556 
In  re  Convey's  Will,  52  lo.  197  :  Den-  Haynes   v.    Haynes,    33    O.    S.    598 
ton  V.Franklin,  9  B.  Mon.  (Ky.)  28;  Rosser  v.  Franklin,  6  Gratt.    (Va.) 
Hall  V.   Hall.   17   Pick.   273:     Nick-  1. 

erson  v.  Buck,  12  Cush.  332;  Welch  256  Walton  v.   Kendrick,   122   Mo. 

V.   Adams,   63   N.   H.    344;    Cravens  504;  Main  v.  Ryder,  84  Pa.  St.  217. 

v.  Fauleoner,  28  Mo.  19:  Grimm  v.  Contra.      In   the   matter   of   Mer- 

Tittman,    113    Mo.    56;    Tonnele   v.  chant's   Will,    1    Tuck.    (N.   Y.)    17 
Hall,    4    N.    Y.    140;    Radebaugh    v. 


224  LAW     OF    WILLS. 

a  person  duly  authorized  bj  testator,  it  is  not  necessary  that 
testator  explain  the  method  of  the  signature  to  the  witnesses 
when  he  acknowledges  it.  All  that  is  necessary  is  that  he  in- 
dicate to  them  that  the  signature  to  the  will  is  his,  as  in  legal 
effect  it  is.2" 

§205.     Form  of  acknowledgment. 

No  formal  or  exact  set  of  words  is  required  by  law  for  the 
acknowledgment  of  testator's  signature.  The  express  words  of 
testator  constitute  the  best  form  of  acknowledgement  as  being 
the  least  subject  to  mistake.  So,  reading  the  attestation  clause 
in  the  presence  of  the  witnesses,  testator's  signature  being  visi- 
ble, is  a  sufficient  acknowledgment  of  his  signature.^^® 

Informal  statements  of  testator. 

As  this  acknowledgment  need  not  he  in  any  set  form,  where 
testator  showed  the  instrument  to  witnesses  with  his  signature 
visible  thereon,  stated  that  it  was  his  will,  and  asked  them  if 
they  'recognized  his  signature,'  and  they  answered  'yes'  and  he 
then  asked  them  to  sign  as  witnesses,  it  was  held  to  be  a  suffi- 
cient acknowledgment  of  testator's  signature.^^® 

In  Illinois  the  statute  requires  the  testator  to  acknowledge 
the  will  as  his  act  and  deed.  It  is  held  that  this  statute  is 
satisfied  by  an  acknowledgment  of  the  will  as  testator's  act  and 
deed,  without  his  acknowledging  his  signature,  even  though  the 
witnesses  did  not  see  him  sign.^^o  jf  testator  declares  the  in- 
strument to  be  his  free  and  voluntary  act  and  deed,  it  is  a  suffi' 
cient  acknowledgment  in  Pennsylvania.^*^^ 

257  Haynes  V.  Haynes,  33  O.  S.  ficient  to  authorize  the  inference 
598;  Rosser  v.  Franklin,  6  Gratt.  that  he  executed  the  paper  as  a 
(Va.)    1.  will,    and    is    equivalent   to    an    ac- 

258  Allison  V.  Allison,  46  111.  61.  knowledgment    that    he    signed    the 

259  Stewart  v.  Stewart,  56  N.  J.  paper  as  a  will."  Harp  v.  Parr,  168 
Eq.  761.  111.  459;  Hobart  v.  Hobart,  154  111. 

200  Harp    v.    Parr,   168   111.    459.       610. 

"Where    a    testator    requests    the  26i  Loy  v.   Kennedy,    1    W.   &    S. 

witness  to  attest  his  will,  this  is  suf-       396. 


LAW    OF    WILLS.  ^^"^ 

Gestures  of  testator. 

Acknowledgment  may  also  be  made  by  the  acts  and  gestures 
of  the  testator,  without  using  any  words  about  the  signature 
itself.  Thus,  exhibiting  the  instrument  with  testator's  signa- 
ture thereon,  and  referring  to  it  as  testator's  will,  amounts  to 
an  acknowledgment  of  the  signature.^^^  Or  if  without  referring 
to  such  instrument  as  his  will  the  testator  produce  it  with  his 
signature  visible  and  request  witness  to  sign  it,  this  has  been 
held  to  be  sufficient  acknowledgment's^  So  where  testator 
shows  a  paper  to  witnesses  with  a  cross  between  the  words  of  his 
name  and  refers  to  such  paper  as  his  will,  this  is  sufficient  ac- 
knowledgment of  the  mark  as  his  signature,'"-*  and  it  has  been 
held  a  sufficient  asknowledgment  where  testator  placed  before 
the  subscribing  witnesses  an  instrnment  which  was  clearly  his 
will  and  was  named  as  such  on  the  envelope,  and  was  in^  fact 
signed  by  him,  when  his  signature  is  well  known  to  them.'"^ 

Statement  of  others. 

The  statements  of  others  made  in  testator's  presence  and  hear- 
ing, such  as  the  statements  of  the  attorney  or  scrivener  who 
drafts  the  will  and  supervises  the  execution,  may  be  so  ac- 
quiesced in  and  acted  upon  by  testator  as  to  amount  to  an  ac- 
knowledgment by  him.'ss 

262llott   y.   Genge,    3   Curt.    160;  (Mass.)     332;    Dewey   v.    Dewey     1 

Smith    V.    Holden,    58    Kan.    535;  Met.    (Mass.)   349;  Ela  v    Edwards. 

Gilbert  V.  Knox,  52  N.  Y.  125.  16    Gray.     (Mass.)     91;    Grimm     v. 

263  In  re  Porter's  Will,  20  D.  C.  Tittman,  113  Mo.  56 ;  Odenwaelder  v. 
493-  Turner  v.  Cook,  36  Ind.  129;  Schorr,  8  Mo.  App.  458;  Peck  v. 
FM  V.  Pragoff,  79  Ky.  607;  Til-  Gary,  27  N.  Y.  9;  Gilbert  v.  Knox, 
den  V.  Tildent  13  Gray.  110 ;  Allen  52  N.  Y.  125  -In  re  Nelson  141  N. 
V.  Griffin,  69  Wis.  529.  Y.  152  ;    Radebaugh  v.  Shelley,  6  O. 

264  Guilfovle's  Will,  96  Cal.  598 ;  S.   307. 

Cravens   v  Vaulconer,   28   Mo.    19;  "The  silence  and  presence  of  the 
Grimm    v     Tittman,    113    Mo.    56;  testator  gave  consent  to  these  dec- 
Stephens  V.  Stephens,  129  Mo.  422.  larations  on  the  part  of  the  person 
"L  Grimm    v.    Tittman,    113    Mo.  superintending  the  execution  of  the 

will,  and  amounted  to  an  acknowl- 

^^oeelncrlesant   v.    Inglesant,   L.   R.  cdgment  by  the  testator  of  the  will 

3  Prob  i  D^.  172;    Harp  v.  Parr,  as  his  act  and  deed."    Harp  v.  Parr, 

1G8  111.  459;   Allison  v.  Allison,  46  168  111.  459. 
Hi.  61 ;  Nickerson  v.  Buck,  12  Cush. 


226  LAW    OF    WILLS. 

Signature  of  testator  visible. 

In  order  to  constitute  a  valid  acknowledgment,  the  signature 
of  testator  must  be  visible  to  the  witnesses,  so  that  they  can 
identify  it  as  the  signature  which  testator  acknowledged.^^^ 
If  the  attesting  witnesses  can  not  see  the  signature  of  testator 
at  the  time  of  the  execution  of  the  will,  it  is  not  an  acknowl- 
edgment of  the  signature  within  the  meaning  of  the  statute.^^^ 
So  where  testatrix  apparently  wrote  her  name  at  the  foot  of  an 
instrument  in  the  presence  of  witnesses,  but  they  could  not 
see  whether  she  was  really  writing  her  name  or  only  pretend- 
ing to  do  so;  and  she  then  handed  the  paper  to  them  to  sign, 
so  covered  up  that  only  the  place  where  they  were  to  sign  was 
left  exposed,  it  was  held  to  be  neither  a  valid  subscription  in 
their  presence,  nor  a  valid  acknowledgment  of  such  subscrip- 
tion.2<59 

What  is  not  an  acTcnowledgment. 

In  the  absence  of  any  acts  of  testator,  however,  the  mere  as- 
sumption by  the  subscribing  witnesses  that  it  was  in  fact  tes- 
tator's will,  and  was  signed  by  him,  is  not  a  substitute  for  ac- 
knowledgment by  him.^'^*^  The  statement  that  the  instrument 
was  testator's,  when  made  by  the  person  supervising  the  ex- 
ecution of  the  will,  where  testator  did  not  hear  it,  was  not  a 
sufficient  acknowledgment  by  testator.^'^^ 

§206.     Acknowledgment  of  will  instead  of  signature. 

The  Statute  of  Frauds  required  the  will  to  be  in  writing, 
signed  by  testator  or  by  some  one  in  his  presence  and  at  his 
direction,  and  attested  and  subscribed  by  three  or  four  credi- 
ble witnesses  in  testator's  presence.     IS'o  provision  was  inserted 

267Mackay's  Will,  110  N.  Y.  611 ;  tin,  121  N.  Y.  664;  45  Hun,  1. 
1   L.   R.   A.  491;    18   Am.   St.   Rep.  268  Lewis  v.  Lewis,  11  N.  Y.  220; 

558 ;  Smith  v.  Holden,  58  Kan.  535 ;  Mitchell  v.  Mitchell,  77  N.  Y.  596. 
Stewart  v.   Stewart,   56   N.   J.   Eq.  269  Ludwig's     Estate,     —    Minn. 

761;    Basldn  v.   Baskin,    36   N.   Y.  — ;  81  N.  W.  758. 
416;  Willis  v.  Mott,  36  N.  Y.  486;  270  Luper  v.   Werts,   19   Ore.   122. 

In  re  Higgins,  94  N.  Y.  554 ;  In  re  271  Ludlow    v.    Ludlow,    8    Stew. 

Phillips,  "98  N.  Y,  267;   In  re  Aus-  (N.  J.)    480;   9  Stew.    (N.  J.)    597. 


LAW     OF     WILLS.  227 

requiring  witnesses  to  see  testator  sign  or  hear  him  acknowl- 
edge his  signature,  nor  did  the  statute  specifically  provide  what 
the  witness  was  to  attest.  Where  this  statute  or  one  like 
it  is  in  force,  it  has  heen  held  in  some  jurisdictions  that 
the  witnesses  need  not  see  testator's  signature.  If  testator  ac- 
knowledges the  instrument  as  his  will,  in  the  presence  of  the 
subscribing  witnesses,  it  is  sufficient.  He  does  not  need  to  ac- 
knowledge his  signature  to  the  witnesses.^^^ 

It  has  been  said  in  some  text-books  and  oUter  dicta  that  under 
many  modern  American  statutes,  the  witnesses  need  not  see 
testator's  signature  if  testator  acknowledges  the  instrument  as 
his  will. 

(3f  the  cases  generally  cited  in  support  of  this  view,  some 
Massachusetts  cases  are  those  in  which  wills  were  upheld 
where  one  or  more  of  the  attesting  witnesses  had  no  recollec- 
tion of  seeing  testator's  name  before  he  signed  as  witness ;  but 
the  record  was  consistent  with  the  theory  that  testator  had  ac- 
knowledged his  signature  in  due  form,  although  the  witnesses 
had  forgotten  that  fact.^^^ 

Many  American  cases  which  are  often  cited  to  sustain  the 
proposition  that  testator  need  not  acknowledge  his  signature, 
but  that  if  he  acknowledges  his  will,  the  witnesses  need  not 
see  his  simature,  are  reallv  cases  where  the  signature  was 
plainly  visible  to  the  subscribing  witnesses.^^^  In  spite,  there- 
fore, of  occasional  obiters  it  may  be  said  to  be  the  weight  of 
authority  under  the  modern  Wills  Acts  that  an  acknowledg- 
ment of  a  will  by  testator  is  not  sufficient  unless  the  witnesses 
have  an  opportunity  of  seeing  his  signature. 

272  White   V.    Trustees   of    British  2-3  Dewey  v.  Dewey,   1  Met.  349; 

Museum,    6    Bing.    310;    Wright   v.  Hogan    v.    Grosvenor,    10    Met.    54; 

Wright,    7    Bing.    457;    Johnson    v.  Tilden  v.  Tilden,  13  Gray.  110. 

Johnson,  1  Cr.  &  M.  140.  274  Canada's  Appeal.  47  Conn.  450 ; 

In   the   above   cases   there   was   a  Allison  v.  Allison,  4G  111.  61 :  Brown 

specific  finding  of  fact  that  the  at-  v.  McAllister,   34  Ind.   375;   Turner 

testing   witnesses    did   not    see    the  v.    Cook,    36    Ind.    129;    Flood    v. 

signature  of  testator.  Pragoflf,  79  Ky.  607;  Allen  v.  Grif- 
fin,  69   Wis.   529, 


228  LAW    OF    WILLS. 

§207.     Effect  of  failure  to  sign  or  acknowledge  before  witnesses. 

It  is  indispensable  to  tlie  validity  of  the  will  that  it  be 
either  signed  by  testator  in  the  presence  of  witnesses  or  ac- 
knowledged by  him  in  their  presence.  Where  the  testator  pro- 
duced his  unsigned  will  and  requested  the  witnesses  to  sign 
their  names  as  witnesses  to  the  document,  and  they  signed  in 
his  presence,  and  afterwards  in  their  absence  he  signed  the 
will,  and  the  attesting  witnesses  did  not,  see  the  signature  of 
testator  till  the  will  was  produced  for  probate  after  testator's 
death,  it  was  held  to  be  invalid.^'^ 

§208.     Capacity  of  testator  to  be  attested  by  witnesses. 

Further,  the  subscribing  witnesses  are  required  to  attest  to 
the  capacity  of  the  testator,  including  his  legal  age,  sanity  and 
freedom  from  undue  inlluence.^^^  This  point  is  often  misun- 
derstood by  the  witnesses  who  think  that  they  are  attesting  only 
the  legal  formalities  of  the  execution.^ ^^ 

§209.     Presence. — Mental  cognition. 

The  codes  generally  require  the  subscribing  witness  to  sign 
his  name  in  the  "presence"  of  the  testator.^^^  In  the  absence 
of  such  statutory  provision  this  is  not  necessary.^'^^ 


275  Keyl  V.  Feuehter,  56  O.  S.  424 
Simmons  v.  Leonard,  91  Tenn.  183 

276  Field's  Appeal,  36  Conn.  277 
Allison  V.  Allison,  46  111.  61 ;  Steph 
enson  v.  Stephenson,  62  lo.  163 
Withington  v..  Withington,  7  Mo 
589 ;  Chappell  v.  Trent,  90  Va.  849 
Scribner    v.    Crane,    2    Paige    147 


compos  to  sign — that  is,  of  sound 
mind,  as  every  will  on  the  face 
of  it  imports."  Heyward  v.  Hazard, 
1  Bay  { S.  Car. )  335,  quoted  and  fol- 
lowed in  Kaufman  v.  Caughman,  49 
S.    Car.    159. 

Contra,  that  the  subscribing  wit- 
nesses  do   not   impliedly   attest  the 


und    see    Whitenack    v.    Stryker,    2  mental  capacity  of  testator   so  as  to 

N.    J.    Eq.    8.  discredit     their     subsequent     testi- 

"The  witnesses  are  not  called  on  mony  to  the  contrary.  D'Avignon's 

...  to   attest   the  mere   factum   of  Will,  12  Colo.  App.  489. 
signing,    but    the    capacity    of    the  277  See  Sec.  374. 

testator."     .  .  .  "The  business,  then,  27.S  Snider  v.   Burks,   84   Ala.   53; 

of   the  persons  required   by   statute  Mays  v.  Mays,   114  Mo.  536. 
to  be  present  at  executing  a  will  is  279  Rogers    v.    Diamond,    13    Ark. 

not  barely  to  attest  the  corporal  act  473;    In  re  Cornelius'  Will,  14  Ark. 

of   signing,   but   to   try.   judge   and  675;   Abraham  v.  Wilkins,   17  Ark. 

determine    whether    the    testator    is  292. 


LAW    OF    WILLS. 


229 


The  word  'presence'  is  used  in  the  Statutes  of  Wills  in 
three  connections.  A  person  signing  the  will  for  testator  must 
sign  in  his  presence;  a  testator  must  sign  the  will  in  the 
presence  of  the  attesting  witnesses,  or  acknowledge  the  signa- 
ture as  his  own ;  and  the  subscribing  witnesses  must  subscribe 
in  the  presence  of  the  testator.  The  word  'presence'  has  a 
technical  meaning,  which  is  the  same  in  these  three  contexts. 
It  involves  two  ideas. 

(a)  ]\[ental  cognition  of  the  act. 

(b)  Physical  contiguity. 

The  person  in  whose  presence  the  act  is  done  must  be  able 
mentally  to  know  what  is  being  done.^^^ 

Thus,  if  he  is  so  faint  as  not  to  be  able  to  know  what  is 
being  done  it  is  impossible  within  the  technical  meaning  of 
the  term  for  the  act  to  be  done  in  his  presence.^*^  So  if  his 
inability  to  know  arises  from  his  being  asleep,  in  a  stupor  or 
dying.^^2 

Further,  in  addition  to  his  being  able  mentally  to  know 
what  is  being  done,  the  person  in  whose  presence  the  act  is  to 
be  done  must  be  informed  of  what  is  taking  place,  so  that 
he  actually  does  know  what  is  being  done.^^^  Thus,  if  the 
witness  sign  the  will  close  to  testator,  but  in  a  surreptitious 
manner,  so  that  he  does  not  know  what  they  are  doing,  the  act 
is  not  done  in  his  presence.^^^ 

If  the  person  in  whose  presence  the  act  is  to  be  done  is 
mentally  capable  of  knowing  what  is  being  done,  and  is  in- 
formed of  what  is  being  done,  but  through  inattention  or  in- 
advertence does  not  take  notice,  at  the  time,  of  what  is  being 

280  Hill  V.  Barge,  12  Ala.  687;  282  Longford  v.  Eyre,  1  P.  Wms. 
Hall  V.  Hall,  18  Ga.  40;  Jackson  740;  Walters  v.  Walters,  89  Va. 
V.  Moore,   14  La.  Ann.  213;    Etch-      849. 

ison  V.  Etchison,  53  Md.  348;  Wat-  283  Jenner  v.   Finch,   49   L.   J.   P. 

son  V.  Pipes,  32  Miss.  451 ;  Baldwin  25;    5    P.    D.    lOG;    42    L.    T.    327; 

V.   Baldwin,   81   Va.  405;   Tucker  v.  28  W.  R.  520. 

Sandige,  85  Va.  54G ;  Meurer's  Will,  2.s4  Waite    v.    Frisbie,    45    Minn. 

44  Wis.  392.  361. 

281  Right   V.   Price,    1    Doug.    241. 


280  LAW     OF     WILLS. 

done;  is  the  act  done  in  his  presence?     Upon  this  point  there 
is  a  decided  difference  of  judicial  opinion  chiefly  in  obiter.^*^ 

§210.     Presence Physical   proximity. 

Further,  the  word  'presence'  implies  that  what  is  to  be  done 
in  a  person's  presence  must  take  place  in  physical  proximity 
to  such  person. "^*^ 

Exactly  what  degree  of  proximity  is  required  has  been  the 
subject  of  a  great  deal  of  judicial  discussion.  The  majority 
of  the  courts  have  agreed  upon  the  following  principles  on 
this  point : 

1.  Distance  is  not  the  test.  An  act  done  very  near  one 
may  not  be  in  his  presence,  while  one  done  much  farther 
away  may  be.^^'''  l^'or  is  it  a  test  that  the  act  be  done  in  the 
same  room.  It  may  not  be  done  in  the  presence  of  one,  though 
it  be  done  in  the  room  where  he  is.^^*  While  it  is  possible 
that  an  act  done  in  an  adjoining  room  may  be  done  in  his 
presence.^^^ 

2.  However,  if  the  act  is  done  in  the  same  room  with  a 
person,  it  is  priyna  facie  done  in  his  presenco.^^*^  While  if  done 
in  another  room  it  is  prima  facie  done  out  of  his  presence.^^^ 
In  either  case  the  presumption  is  only  prima  fade,  and  may 
be  rebutted.^^^ 


2S.5  In  Robbins  v.  Robbins,  50  N.  289  Lamb  v.  Girtman,  26  Ga.  625; 
J.  Eq.  742,  it  was  said  that  if  a  wit-  Ambre  v.  Weishaar,  74  111.  109;  Me- 
ness  does  not  notice  what  is  done,  Elfresh  v.  Guard,  32  Ind.  408 ;  Bol- 
through  inattention,  it  is  not  done  dry  v.  Parris,  2  Gush..  433;  Mande'- 
in  his  presence.  In  Smith  v.  Hoi-  ville  v.  Parker,  31  N.  J.  Eq.  242; 
den,  58  Kan.  535,  the  opposite  view  34  N.  J.  Eq.  211 ;  Hopkins  v.  Wheel- 
is  taken,  provided  the  witness  saw  er,  R.  I.  (1900),  45  Atl.  551;  Meur- 
the  result  of  the  act  done,  upon  the  er's  Will,  44  Wis.  392. 
same  occasion.  290  Ayers  v.  Ayers,  43  N.  J.  Eq 

286  The  use  of  "personal  and  ac-  565;    Stewart  v.   Stewart,   56  N.  J 
tual   presence"   was   held   to   be   re-  Eq.  761. 

dundant,  but  not  an  erroneous  syn-  291  Lamb  v.  Girtman,  26  Ga.  625, 

onym    for    "presence"    in    Green    v.  Lamb  v.  Girtman,  33  Ga.  289. 

Green,  145  111.  264.  292  Hopkins    v.     Wheeler,     R.     ] 

287  Neil  V.  Neil,  1  Leigh   (Va.)   6.  (19001,  45  Atl.  551. 

288  Hamlin  v.  Fletcher,  64  Ga. 
549;  Walker  v.  Walker,  67  Miss. 
529. 


LAW    OF    WILLS. 


231 


3.  For  one  who  can  see  the  test  of  presence,  as  far  as  physi- 
cal proximity  is  concerned,  is  that  the  act  must  be  done  where 
he  can  with  reasonable  effort  see  what  is  being  done  so  as  to 
identify  the  whole  act.^^^  If  he  can  with  reasonable  effort 
see  what  is  being  done,  it  is  not  necessary  that  he  actually 
see  it.^^^  Of  course,  if  the  person  does  actually  see  the  act 
performed,  so  as  to  identify  it  clearly,  such  act  is  done  in  his 
presence.^^^ 

The  complicated  cases  are  those  in  Avhich  it  can  not  be 
shown  that  such  person  did  actuall  ysee  what  was  taking  place, 
so  that  the  courts  are  obliged  to  consider  his  opportunity  for 
seeing  what  took  place  at  the  execution  of  the  will. 


§211.     What  is  a  reasonable  effort. 

What   degree    of   exertion    amounts   to   a  reasonable   effort 
is  a  matter  about  which  there  has  been  considerable  discus- 


293  Hill  V.  Barge,  12  Ala.  687; 
Reed  v.  Roberts,  26  Ga.  294;  Ham- 
lin V.  Fletcher,  64  Ga.  549;  How- 
ard's Will,  5  T.  B.  Mon.  (Ky.) 
199;  Edelen  v.  Hardy,  7  Har.  &  J. 
(Md. )  61;  Dewey  v.  Dewey,  1  Met. 
(Mass.)  349;  Allen's  Will,  25  Minn. 
39;  Compton  v.  Mitton,  7  Hal.  (N. 
J.)  70:  Sprague  v.  Smith,  8  R.  I. 
252;  Wright  v.  Lewis,  5  Rich.  (S. 
Car.)  212;  Drury  v.  Connell,  177 
111.  43;  Mendell  v.  Dunbar,  169 
Mass.  74 ;  citing  Boldry  v.  Parris, 
2  Gush.  (Mass.)  433;  Spratt  v. 
Spratt,  76  Mich.  384;  Maynard  v. 
Vinton,  50  Mich.  139;  Hopkins  v 
Wheeler,   R.   I.    1900:    45   Atl.   551; 

294  Baldwin  v.  Baldwin,  81  Va. 
405.  Hill  V.  Barge.  12  Ala.  687; 
Robinson  v.  King.  6  Ga.  539  ;  Hamlin 
V.  Fletcher,  64  Ga.  549;  Turner  v. 
Cook,  36  Ind.  129;  McElfresh  v. 
Guard,  32  Ind.  408:  Bundy  v.  Me- 
Knight,  48  Ind.  502:  Shafer  v. 
Smith,  7  H.  &  J.    (Md.)   67;  Dewey 


V  Dewey,  1  Met.  349;  Aiken  v. 
Weckerly,  19  Mich.  482;  Maynard 
V.  Vinton,  59  Mich.  139;  Allen's 
Wills,  25  Minn.  39;  Rucker  v. 
Lambdin,  12  S.  &  M.  230;  Wat- 
son V.  Pipes,  32  Miss.  451;  Camp- 
bell V.  McGuiggan  (N.  J.  Prer.), 
34  Atl.  383;  Reynolds  v.  Reynolds, 
1    Speer    (S.    Car.)    253. 

"Contiguity  with  an  uninterrupt- 
ed view  between  testator  and  the 
subscribing  witnesses  is  the  indis- 
pensable element  of  the  physical 
signing  in  the  testator's  presence. 
It  is  immaterial  that  he  does  not 
see  if  he  might  have  done  so,  but 
no  mere  contiguity  of  the  witnesses 
will  be  sufficient,  if  the  testator 
can  not  see  them  sign.  Nothing  will 
constitute  a  'presence'  within  the 
meaning  of  the  statute  unless  the 
testator  can  from  his  actual  posi- 
tion see  the  act  of  attestation." 
Drury  v.  Connell,  177  111.  43. 

29i  Bundy  v.  McKnight,  48  Ind. 
502;  Allen's  Will,  25  Minn.  39. 


232  LAW    OF    WILLS. 

sioTi.     An  analysis  of  the  adjudicated  eases  will  show  that  the 
weight  of  authority  establishes  the  following  propositions: 

1.  If  the  person  in  wliose  presence  the  act  is  to  be  done 
can  see  what  is  taking  place  by  changing  the  direction  of  his 
o-aze,  without  moving  from  the  place  where  he  is  at  the  time; 
and  he  is  able  to  change  the  direction  of  his  gaze  without 
pain,  discomfort  or  danger,  the  act  thus  done  is  done  in  his 
presence.^^® 

2.  If  testator  Is  so  situated  that  he  can  not  see  what  is  tak- 
ing place  without  leaving  his  place,  and  he  does  not  leave  it, 
the  act  is  not  done  in  his  presence;  even  though  he  was  able 
to  move  with  comfort.^^^  Thus,  where  a  door-shutter  was 
partially  closed  so  that  testator  could  not  see  the  witnesses 
sign  witliout  moving,  and  he  did  not  move,  it  was  held  that 
the  act  Avas  not  done  in  his  presence.^^^  Where  the  witnesses 
signed  in  an  adjoining  room,  and  testator  could  have  seen  them 
sign  by  walking  to  the  door  and  looking  into  the  next  room, 
which  he  did  not  do,  the  will  was  not  attested  in  his  presence. ^^'^ 

3.  If  the  exertion  necessary  for  such  person  to  change  the 
direction  of  his  gaze,  is  painful  but  not  dangerous,  it  seems 
that  the  act  is  not  done  in  his  presence,  unless  it  is  done  where 
he  can  see  the  transaction  without  making  such  painful  exer- 
tion to  change  the  direction  of  his  gaze.^"*^ 

4.  Likewise,  if  the  exertion  necessary  for  him  to  change  the 
direction  of  his  gaze  is  dangerous  to  his  life,  an  act  done  where 
he  does  not  in  fact  see  it,  but  where  he  could  see  it  by  chang- 
ing the  direction  of  his  gaze,  can  not  be  said  to  be  done  in  his 
presence.^^^ 

5.  If  it  is  physically  impossible  for  him  to  move,  so  as  to 

296  Campbell  v.  MeGuiggan  (N.  J.  30i  Witt  v.  Gardiner,  15^  111.  176. 

Prer.)     34    Atl.    383;    Maynard    v.  In   this   case   testator   had   physical 

Vinton,    59    Mich.    139;    Walker    v.  strength  enough  to  lean  on  his  bed 

Walker,  67  Miss.  529.  and   thus  watch   the  witnesses   sign 

297  Brooks  V.  Duffell,  23  Ga.  441 ;  the  will  in  the  adjoining  room,  or 
Downie's  Will,  42  Wis.  66.  even   go  into   such  room;    but  such 

298  Brooks  V.  Duffell,  23  Ga.  441 ;  exertion    would    have    been    at    the 

299  Doe  d  Wright  v.  Manifold,  1  risk  of  his  life.  Held,  the  attesta- 
M.  &  S.  294.  tion  was  not  in  his  presence. 

800  Keed  v.  Roberts,  26  Ga.  294. 


LAW    OF    WILLS.  233 

see  the  act  done,  such  act  can  not  be  said  to  be  done  in  his 
presence.  ^^^ 

§212.     What  testator  or  witness  must  be  able  to  see. 

In  order  to  identify  tlie  act,  it  is  necessary  that  the  testator 
be  able  to  see  either  the  paper  on  which  the  writing  is  done,^"^ 
or  the  motion  of  the  pen  as  the  letters  are  formed,  where  he 
subsequently  sees  the  signature  as  thus  written.^^"*  It  is  not 
necessary  that  he  be  able  to  see  the  letters  as  they  are 
formed.^^^  But  where  the  witnesses  see  the  motion  of  testa- 
trix's hand,  apparently  writing  her  name,  but  do  not  see  tlie 
name  while  being  written,  and  do  not  see  it  afterwards,  it  is 
not  written  in  their  presence.^^^  On  the  other  hand,  if  he  is 
not  able  to  see  either  the  paper  or  the  motion  of  the  pen,  it 
is  not  in  his  presence  even  though  he  can  see  the  parties  while 
they  write  their  names.^^''' 

§213.     Minority  view  of  meaning  of  presence. 

In  some  recent  cases  the  settled  meaning  of  presence,  as 
stated  in  the  text,  has  been  attacked  and  condemned  as  too 
narrow.  As  we  have  seen,^^^  the  majority  rule  is  that  the 
ability  to  see  constitutes  "presence"  where  testator  has  phys- 
ical ability  to  see  at  all.  The  rule  suggested  by  the  cases 
referred  to  seems  to  be  substantially  the  same  rule  as  in  the 
case  of  the  blind,^"^  namely,  that  if,  by  the  exercise  of  all 
his  available  faculties,  the  person  in  whose  presence  the  act 

302Drury  v.  Connell,   177   111.  43.  ^04  Ayres  v.  Ayres,  43  JST.  J.   Eq. 

The   court   said   in   this   case:      "It  565;    Maynard  v.  Vinton,  59  Mich, 

would  not  be  attestation  in  the  pres-  139. 

ence  of  the  testator  if  he  could  not  305  Ayers  v.  Ayers,  43  N.  J.  Eq. 

see  the  act  of  attestation,  but  merely  565. 

understood    from    the    surrounding  306  Ludwig's  Estate,  —  Minn. — ; 

circumstances  that  the  act  was  tak-  81  N.  W.  758. 

ing  place."  307  Graham   v,   Graham,    10   Ired. 

303  Nock  V.  Nock.  10  Gratt.  (Va.)  (K  C),  219. 

106;    Burney   v.    Allen,    125    N.    C.  308  See   Sec.   210. 

315.  309  See  Sec.  214. 


234 


LAW    OF    WILLS. 


is  to  be  done  knows  what  is  taking  place,  the  act  is  done  in 
his  presence,  whether  he  sees  it  done  or  not.* 

§214.     What  is  presence  of  one  who  is  blind. 

In  the  case  of  those  who  can  not  see  two  different  tests  have 
been  snggested : 

a.  It  has  been  held  bj  some  authorities  that  the  act,  if 
done  so  that  it  would  be  in  the  presence  of  one  who  could  see 
situated  in  the  place  of  the  blind  person,  is  done  in  the  pres- 
ence of  such  person.^^*^ 

b.  A  safer  test  and  one  indorsed  by  the  better  line  of  au- 


*  Gallagher  v.  Kinkeary,  29  111. 
App.  415;  Smith  v.  Holden,  58  Kan. 
535;  Riggs  v.  Riggs,  135  Mass. 
238;  Cook  V.  Winchester,  81  Mich. 
581. 

In  Riggs  V.  Riggs,  135  Mass.  238, 
the  witnesses  signed  in  the  same 
room  with  the  testator  about  nine 
feet  away  from  him.  He  lay  on 
the  bed  flat  on  his  back  and  by 
reason  of  an  injury  to  his  neck 
could  not  turn  his  head  so  as  to  see 
the  witnesses  sign  the  will,  though 
his  sight  was  unimpaired.  He  knew 
what  was  taking  place  and  had  re- 
quested  the   witnesses   to   sign. 

Held,  such  signature  was  in  his 
presence,  citing  and  refusing  to  fol- 
low Aiken  v.  Weckerly,  19  Mich. 
482;  Downie's  Will,  42  Wis.  66; 
Jones  V.  Tuck,  3  Jones  (N.  Car.), 
202;  Graham  v.  Graham,  10  Ired. 
219. 

On  similar  facts  the  same  view 
of  what  'presence'  means  was  taken 
in  Cook  V.  Winchester,  81  Mich. 
581;  8  L.  R.  A.  822. 

In  Smith  v.  Holden,  58  Kan.  535, 
the  evidence  developed  that  a  wit- 
ness had  been  inattentive  and  ap- 
parently had  gone  into  an  adioin- 
ing   room    at   the    moment    of    sig- 


nature by  testatrix  and  returning 
had  found  the  act  done.  The  court 
held  that  even  if  the  witness  did 
not  see  the  signature  written  and 
heard  no  acknowledgment  thereof,  it 
was  nevertheless  signed  in  his  pres- 
ence. Speaking  of  the  witnesses,  the 
court  said:  "If  not  at  all  times 
within  her  (the  testatrix's)  sight 
and  hearing,  they  were  within  the 
circle  and  contiguity  of  her  pres- 
ence." 

In  Cunningham  v.  Cunningham, 
83  N.  W.  (Minn.)  (1900)  58,  tes- 
tator signed  the  will  in  the  pres- 
ence of  the  witnesses.  They  then 
stepped  into  the  next  room  to  a 
table  and  subscribed  their  names  to 
the  will.  Testator  could  have  seen 
them  sign  by  arising  from  the 
chair  in  which  he  was  sitting  and' 
stepping  forward  about  three  feet; 
but  by  preference  he  remained  in 
the  chair  from  which  he  could  not 
see  the  table.  In  less  than  two 
minutes  the  witnesses  returned 
with  the  will  and  pointed  out  their 
signatures  to  testator  who  looked 
over  and  pronounced  it  "all  right." 
This  was  held  to  be*  a  valid  attes- 
tation  in   the   presence   of   testator. 

310  In  re  Piercy,  1  Rob.  278. 


LAW    OF     WILLS.  235 

thorities  is  that  the  act  must  be  done  in  such  proximity  to  the 
blind  person  that  he  can,  by  means  of  his  remaining  senses, 
know  what  is  being  done.^^^ 


§215.     Effect  of  acknowledgment  by  witness  of  his  signature 
not  made  in  presence  of  testator. 

Most  statutes  require  the  witness  to  sign  in  the  presence 
of  the  testator,  and  make  no  mention  of  any  acknowledgment 
by  the  witness  of  his  signature  made  without  testator's  pres- 
ence. Where  the  statutory  provisions  are  of  this  nature  the 
requirement  that  the  witnesses  sign  in  the  presence  of  the 
testator  is  imperative."'^  If  they  sign  out  of  his  presence 
and  afterwar.is  acknowledge  in  his  presence  that  they  signed 
their  names,  the  will  is  invalid."^^^  Retracing  their  signatures 
with  a  dry  pen  is  nothing  more  than  an  acknowledgment.  Re- 
tracing a  former  signature  with  a  dry  pen  is  not  a  signing  by 
the  witness;  ^^'*  nor  is  adding  a  cross  stroke  to  change  a  T  to 
an  F.^^^  These  acts  amount  to  nothing  more  than  an  acknowl- 
edgment of  such  signature. 

§216.     Presence  of  each  other. 

Unless  the  statute  expressly  requires  it,  the  witnesses  are 
not  required  to  sign  in  the  presence  of  each  other,  but  may 
sign  at  different  times  and  places.^^^     In  some  few  jurisdie- 

311  See  dicta  in  Riggs  v.  Riggs,  ^'^*  Goods  of  Maddock,  43  L.  J. 
135  Mass.  238;  Ray  v.  Hill,  3  P.  29;  L.  R.  3  P.  &  M.  169;  30 
Strobh.  (S.  Car.),  297;  Reynolds  L.  T.  696 ;  22  W.  R.  741.  Goods  of 
V.  Reynolds,  1  Spears  (S.  Car.),  Cunningham,  4  Sw.  &  Tr.  194;  29 
253.  L.  J.  P.  71  ;  Home  v.  Feather  stone, 

312  See    cases    cited    in    following  73  Law.  T.  32. 

notes.  315  Hindmarsh  v.   Charlton,   8   H. 

3i3Duffie  V.  Corridon,  40  Ga.  122;  L.  Cas.   160;    7  Jur.    (N.  S.),  611: 

Lamb  v.  Girtman,  33  Ga.  289;  Men-  4  L.  T.  125;  9  W.  R.  521. 
dell  V.  Dunbar,  169  Mass.  74;  Chase  3i6  Grayson    v.    Atkinson,    2    Ves. 

V.   Kittredge,    11   Atl.    (Mass.)    49;  454;    Ellis  v.  Smith.  1  Ves.  Jr.  11; 

Pawtucket  v.  Ballon,  15  R.  I.  .58.  Hoffman   v.   Hoffman.   26   Ala.   535; 

Contra,  Sturdivant  v.  Birehett,  10  Moore  v.  Spie,  80  Ala.  129 ;  Rogers 

G-ratt.  (Va.).  67  :  Parramore  V.  Tay-  v.   Diamond.   13   Ark.   474;    Porter's 

lor,  11  Graft.    (Va.).  220.  Estate,    9    Maekey     (D.    C),    493; 


236  LAW     OF    WILLS. 

tions  the  presence  of  all  the  subscribing  witnesses  together 
is  required  by  statute.^^^  The  English  statute  requires  thai 
the  signature  be  "made  or  acknowledged  by  the  testator  in 
the  presence  of  two  or  more  witnesses  present  at  the  same 
time,  and  such  witnesses  shall  attest  and  shall  subscribe  the 
will  in  the  presence  of  the  testator."  This  has  been  construed 
to  require  that  the  witnesses  subscribe  in  the  presence  of  each 
other.^^^  A  similar  statute  in  Virginia  has  been  construed 
not  to  require  witnesses  to  subscribe  in  the  presence  of  each 
other.319 

However,  when  the  will  has  been  changed  between  the  time 
that  the  first  witness  signed  it  and  the  time  when  the  others 
sign,  it  is  not  properly  attested.  The  same  instrument  must 
be  atttested  by  the  proper  number  of  witnesses  as  a  prerequi- 
site to  its  validity.^^^ 

§217.     Animus  attestandi. 

The  witness  must  act  with  the  intention  of  being  a  "v\at- 
ness — ^with  the  animus  attestandi.  This  is  always  neces- 
sary,^-^ but  it  becomes  important  only  when  he  has  sub- 
scribed his  name  to  the  will,  as  without  such  subscription 
his  intention  is  immaterial. 

So  where  one  signs  the  will  as  an  amanuensis  to  indicate 
that  he  wrote  testator's  name,  as  "A  B  by  C  D,"  he  does  not 
sign  animo  attestandi,  and  he  must  sign  again  with  such  in- 

Webb  V.  Fleming,  30  Ga.  808;  Flinn  (Va.),  239;    Smith's  Will,  52  Wis. 

V.    Owen,    58    111.    Ill;    Johnson   v.  543. 

Johnson,    106   Ind.    475;    Grubbs   v.  sit /^j,   re    Simmons,    3    Curt.    79; 

Marshall,   Ky.,    no   off.   rep.;    13   S.  Moore  v.  King,  3  Curt.  243;  Lane's 

W.    447;     Hogan   v.   Grosvenor,    10  Appeal,   57    Conn.    182;    4  L.   R.   A. 

Met.   (Mass.),  54;  Dewey  v.  Dewey,  45;   Roberts   v.   Welch,   46  Vt.    164. 

1   Met.   349;    Cravens  v.  Faulconer,  3i 8  Moore   v.   King,    3   Curt.   243; 

28  Mo.  19;    Grimm  v.  Tittman,  113  Wyatt  v.  Berry    (1893),  P.  5. 

Mo.    56;    Welch    v.    Adams,    63    N.  3i9  Green     v.     Grain.     12      Gratt. 

H.   344:    Haysradt  v.   Kingman,   22  (Va.),252. 

N.   Y.    372;    Willis   v.   Mott,   36   N.  320  Patterson  v.  Ransom,   55  Ind. 

Y.  486;     Raudebaugh  v.   Shelley,  6  402. 

0.  S.  307;   Simmons  v.  Leonard,  91  321  Boone   v.    Lewis,    103   N.    Car. 

Tenn.    183:     Logue    v.     Stanton,    5  40:     Fowler    v.     Stagner,    55    Tex. 

Sneed  97;  Beane  v.Yerbv.  12  Gratt.  303:   Peake  v.  Jenkins.  80  Va.  29.3. 


2H7 

LAW    OF    WILLS. 


tent  in  order  to  be  an  attesting  witness.^^^      So  where  lie  at- 
tempts to  write  his  name  as  an  attesting  witness  and  aban- 
dons the  attempt,  or  where,  in  order  to  deceive,  he  writes  an 
assumed  nanie.^^^      So  where  one  writes  his  name  as  a  wit- 
ness to  certain  interlineations,  and  not  to  the  will,  he  does 
not  thereby  become  a  subscribing  witness.^-  So  where  a  testator 
indorsed  on  his  will  ^lie  within  is  the  basis  on  which  I  wish 
to  have  my  affairs  disposed  of,  should  no  other  will  be  made 
bv  me  "  and  a  witness  attested  this  indorsement,  it  was  held 
that  such  attestation  was  evidently  not  made  with  the  intent 
of  witnessing  the  will,  and  that  parol  evidence  would  not  be 
admissible  to  show  such  intention.^^s 

\lso  where  the  receiver, who  was  nominated  executor  writes 
his  name  upon  the  will  as  an  indication  of  his  acceptance  he 
was  held  not  to  be  a  subscribing  witness.^^^  But  where  a  tes- 
tator, tlirough  a  mistake  in  the  law,  formally  acknowledges 
the  instrument  as  his  will  before  a  magistrate,  who  adds  his 
official  certificate  of  such  fact,  such  magistrate  may  be  counted 
as  an  attesting  witness.^ ^^ 

§218.     Request  of  testator. 

•  The  statutes  generally  require  that  the  witness  sign  at  the 
request  of  the  testator,  omitting  the  word  express.^^^s  The  re- 
quest of  testator  is  undoubtedly  made  in  the  best  way  by  the 
express  words  of  the  testator  himself  ;^^^  but  a  request  made 
bv  some  other  person  in  the  presence  of  testator  and  assented 
to  by  testator  is  sufficient.^^^     Thus  it  was  held  a  good  request 

32.  Burton    v.    Brown, -Miss. -;  3.7  Payne  v.  Payne,  54  Ark.  415; 

25    So     01-    Peake    v.    Jenkins,    80  Murray   v.    Murphy,    39    Miss.    214. 

Va     29.3     distinguishing   P6llock   V.  328  The  Nebraska  Statute  does  not 

Glassell'  2    Gratt.    (Va.),    439.  make    the    request    of    the    testator 

323  Goods  .of    LeveringtoH,    55    L.  necessary.     Thompson  v.  Thompson, 

J   P    62-   11  P   r>    80.  49  Neb.   157. 

'z.lln     re     Cunningham,    1    S.    &  329  Bundy   v.    McKnight,    48    Ind 

g    J32                                                  -  502;    Dyer    v.    Dyer,    87    Ind.    13; 

■325  Patterson   v.    Ransom,    55  Ind.  Whitenack  v.   Stryker,   2  N.  J.  Eq 


402. 

326  Snelgrove  v.    Snelgrove,    4   De 

Saus.   274. 


Combs    V.    Jolly,    3    N.    J.    Eq 
625. 

330  Huff     V.    Huff,    41     Ga.     695 


238 


LAW    OF    WILLS. 


of  testator  when  his  attorney  said  to  him  in  the  presence  of 
A  and  B :  "Do  you  wish  A  and  B  to  witness  your  will  ?"  and 
the  testator  answered  "Yes."  ^^^  And  the  request  may  be  im- 
plied from  the  acts,  conduct  and  gestures  of  the  testator,  as 
well  as  from  his  words.^^^  So  testator  may  make  his  request 
by  acquiescence  in  the  suggestion  of  a  witness.^^^  But  as  the 
necessity  of  testator's  request  is  created  by  statute,  where  the 
statute  omits  the  requirement  of  testator's  request  it  is  not  nec- 
essarv.^^^ 


§219.     Signature  by  witness. 

The  witness  is  required  by  the  statute  to  "subscribe"  the 
ivill.  This  subscription  should  be  his  full  name,  but  such  for- 
mality is  not  indispensable.  The  witness  may  sign  his  ini- 
tials^^^  or  an  assumed  name,^^^  unless  such  name  is  assumed 
to  deceive  the  court  into  believing  that  another  j^erson  signed 


Bundy  v.  McKnight,  48  Ind.  502; 
Dyer  v.  Dyer,  87  Ind.  13;  Elkin- 
ton  V.  Brick,  44  N.  J.  Eq.  154; 
Peck  V.  Carey,  27  N.  Y.  9;  Coffin 
V.  Coffin,  23  N.  Y.  9;  Gilbert  v. 
Knox,  52  N.  Y.  125;  Nelson's  Will, 
141  X.  Y.  152;  Whitenack  v.  Stry- 
ker,  2  N.  J.  Eq.  8 ;  Combs  v.  Jolly, 
3  N.  J.  Eq.  625;  Mundy  v.  Mundy, 
15  N.  .T.  Eq.  290;  Biirney  v.  Allen, 
125  N.  C.  315;  Cheatham  v.  Hatch- 
er,   30   Gratt.    (Va.),    56. 

33iMullin's  Estate,   110  Cal.  252. 

332  Payne  v.  Payne,  54  Ark.  415; 
Higgins  V.  Carleton,  28  Md.  115: 
Allen's  Will,  25  Minn.  39;  White- 
nack V.  Stryker,  2  N.  J.  Eq.  8; 
Raaidebaugh  v.  Shelley,  6  0.  S.  307; 
Meurer's  Wills,  44  Wis.  392. 

333  Coffin  V.  Coffin,  23  N.  Y.  9. 

334  Mulligan  v.  Leonard,  46  lo. 
692 ;  Thompson  v.  Thompson,  49 
Neb.   157. 

335  [n  re  Christian,   2   Rob.   Ecc. 


Rep.  110;  Jackson  v.  Van  Duzen,  5 
Johns.  (N.  Y. ),  144;  Adams  v. 
Chaplin,   1  Hill  Eq.    ( S.  Car.),  265. 

^36  In  re  Olliver,  2   Spinks,  57. 

Contra,  where  witness  by  inadver- 
tence wrote  testator's  name  instead 
of  his  own.  In  re  Walker's  Estate, 
110  Cal.   387. 

In  this  case  the  will  was  attested 
under  a  statute  requiring  each  wit- 
ness to  "sign  his  name." 

The  court  distinguished  the  fol- 
]r>'ving  cases  as  decided  under  stat- 
utes that  merely  required  each  wit- 
ness to  'subscribe.'  Goods  of  Eynon, 
3  L.  R.  Pro.  &  D.  92:  Goods  of 
Christian,  2  Rob.  Ecc.  110;  In  re 
Olliver,  2  Spinks,  57 ;  and  distin- 
guished the  following  case  under  a 
statute  like  the  California  Stat- 
ute, as  one  where  the  witness  signed 
by  a  mark  and  another  wrote  the 
correct  name  of  the  witness.  Mee- 
han  V.  Rourke,  2  Bradf.  385. 


LAW     OF     WILLS. 


239 


the  will   in  which  case  the  animus  attestand^  is  lacking.  A 

the  will,  m  wn  c  ^^,.1,338     Where  the  statute  allows 

witness  may  sign  by  his  maik.  wne 

a  witness  to  ^'attest  by  his  mark  provided  he  ^^^^^^^^^ 
same"  a  competent  witness  is  not  disqualified  by  mab   ity  to 
«  his  Lk  when  the  will  is  o  W  ^^^^;;^ 
even  if  the  wrong  name  is  written  by  the  mark  by  mistake  t  le 
^aUire  is  goofs-     As  in  the  case  of  the  testate^  the  wU 
ne^'  hand  may  be  glided  by  some  other  person  while  he  h    d 
pen-^     It  has  been  held  to  be  a  good  sigiiature  by  the  wi 
n"s  where  he  touches  the  pen  with  which  another  writes  hi. 
name.^ 


342 


§220.     Signature  of  witness  by  another. 

But  there  is  this  difference  between  the  signature  of  the 
testator  and  that  of  the  witness:  The  codes  general  y  provide 
hat  some  other  person  niay  sign  ior  testator  >f  duly  author- 
ized No  such  provisions  are  made  for  the  signature  of  a  wit 
ness.  Where  no  such  provision  is  made  the  signature  of  a 
witness  made  hy  some  other  person  is  of  no  effect,  even  though 
the  witness  and  the  testator  are  both  present  and  request  such 
signature,  and  the  will  is  invalid  unless,  excluding  such  wit- 
ness, it  is  subscribed  by  the  required  number  of  witnesses. 


337  Pryor  v.  Pryor,  29  L.  J.  P. 
114;  Goods  of  Lever ington,  55  L. 
J.   P.  62;    11   P.  1).  80. 

338  Goods  of  Enyon,  42  L.  J.  P. 
52;  L.  R.  3  P.  92;  29  L.  T.  45;  21 
W.  R.  856;   Doe  d  Davis  v.  Davis, 
9  Q.  B.  648  ;   16  L.  J.  Q.  B.  97  ;   U 
Jur.    182;  In  re  Amiss,  2  Rob.  Rep. 
116;    Harrison  v.   Harrison,   8   Ves. 
185;    Addy    v.    Grix,    8    Ves.    504; 
Wright  V.   Wakeford,   17   Ves.   459; 
Grayson   v.   Atkinson,   2   Ves.   454; 
Dick.    158;    Garrett    v.    Heflin,    98 
Ala.  615 ;  Davis  v.  Semmes,  51  Ark. 
48;    Thompson    v.    Davitte,    59    Ga. 
472 ;  Gilis  v.  Gilis,  96  Ga.  1 ;  Need- 
ham'    v.    Needham,     3    Dane.     Abr. 

452;    Compton  v.  Mitton,   12  N.  J. 

L.  70;    Meehan  v.  Roiirke,  2  Bradf. 


385;  Prigden  v.  Prigden,  13  Ired. 
(N.  Car.),  259;  Ford  v.  Ford,  7 
Ihimph.  (Tenn.),  92;  Rose  v.  Allen, 
1  Cold.    (Tenn.),  23. 

339Gillis  v.  Gillis,  96  Ga.  1. 

340  In  re  Ashmore,  3  Cush.  756. 

341  Lewis  V.  Lewis,  2  Sw.  &  Tr. 
153:  4  L.  T.  583;  Goods  of  Lewis, 
31  L.  J.  P.  153:  7  Jur.  (N.  S.), 
688:  Goods  of  FrHh,  1  Sw.  &  Tr. 
8;  27  L.  J.  P.  6;  4  Jur.  (N.  S.), 
288;  6  W.  R.  262;  Harrison  v. 
Elvin,  3  Q.  B.  117;  6  Jur.  849; 
Campbell  v.  Logan.  2  Brad.  90. 

342  Bell  v.  Hughes,  5  L.  R.  Ir. 
407.  This,  however,  has  been  doubt- 
ed   in    In    re    Kelcher,    6    No.    Cas. 

15. 

343  7„  re  White,  7  Jur.  1045;  In 


240  I'AW     OF     WILLS. 

In  some  states,  however,  a  contrary  view  is  taken.  It  is  a  well- 
recooiiized  principle  of  common  law  that  where  A  signs  or  seals 
for  B  in  B's  presence  and  by  B's  direction,  this  is,  in  legal 
effect,  B's  act.  This  principle  applies  to  contracts  and  convey- 
ances. And  the  states  which  entertain  this  contrary  view 
and  hold  that  a  witness'  name  may  be  written  by  another  reach 
their  conclusion  by  extending  this  common  law  principle  to 
wills.344 

§221.     Place  of  signature  of  witness. 

The  statutes  of  wills  generally  require  the  attesting  wit- 
nesses to  "subscribe"  their  names  to  the  will  as  such  witnesses. 
The  weight  of  authority  is  that  the  word  "subscribe"  has  not 
the  same  meaning  when  used  in  the  Wills  Act  of  the  signa- 
ture of  the  subscribing  witnesses,  that  it  has  when  used  in  the 
Statute  of  Frauds  of  the  signature  "of  the  party  to  be  charged 
therewith."  In  the  latter  case  "subscribe"  means  to  write  be- 
neath, i.  e.,  at  the  end  of  the  document.  But  when  the  wit- 
nesses are  required  by  the  Wills  Act  to  subscribe  their  names 
it  is  held  that  they  may  ^vrite  them  in  any  part  of  the  will 
so  that  it  appears  on  the  face  of  the  will  that  they  were  written 
animo  attestandi.^^^  Thus  the  subscribing  witnesses  may  write 
their  names  above  the  attestation  clause,^^*'  or  where  the  will 
recites  the  presence  of  the  witnesses,  each  witness  may  sign  his 
name  where  it  appears  in  the  body  of  the  will,^-*^  or  the  names 
of  the  witnesses  may  appear  on  the  back  of  the  will.^^^ 

re    Leveiington,    11    Pro.    Div.    80;  Crawford's    Will,    46    S.    Car.    299; 

Goods     of     Diiggins,    39     L.     J.    P.  Jesse  v.  Parker,  G  Gratt.  (Va.) ,  57 : 

24;    Riley    v.    Pdley,    36    Ala.    496;  52   Am.  Dec.    102. 

Horton    v.    Johnson,    18    Ga.    396;  34d  Goods  of  Streatly   0891),  Pr. 

In    re   Lossee's    Will,    34    N.    Y.    S.  172;   Potts  v.  Felton,  70  Ind.   166; 

1120;  Simmons  v.  Leonard,  91  Tenn.  Heady's  Will,  15  Abb.  Pr.    (X.  S.), 

183;   McFarland  v.   Bush,  94  Tenn.  211. 

538 ;   27  L.  R.  A.  662.  3*6  Moale  v.  Cutting,  59  Md.  510. 

344  Schnee      v.      Schnee      (Kan.)  347  Franks   v.    Chapman,    64   Tex. 

(1900),   60  Pac.   738;   Upchurch  v.  159. 

■     Upchurch,   16  B.  Mon.    (Ky.),   102;  348  Goods     of     Braddock,    1     Pro. 

Lord   V.   Lord,    58   N.   H.    7;    In   re  Div.    433. 
Strong,   39   St.  Rep.    (N.  Y.),  852; 


LAW     OF     WILLS.  241 

A  considerable  space  between  the  signature  of  testator  and 
those  of  the  witnesses,  as  where,  testator  signed  his  will  at  the 
end  of  the  dispositive  part  on  the  first  page,  and  the  attestation 
clause  was  at  the  top  of  the  fourth  page,  two  blank  pages  inter- 
vening between  the  signature  and  the  attestation  clause,  does 
not  invalidate  such  will.^'^  Where  a  will  and  codicil  were 
executed  at  the  same  time  and  were  written  on  the  same  piece 
of  paper,  it  was  held,  where  the  witnesses  signed  their  names 
under  the  will  only,  that  it  was  a  good  attestation  as  to  both 
will  and  codicil.^^^  Where  witnesses  wrote  their  names  on 
the  margins  of  the  first  and  second  sheets  of  the  will,  opposite 
certain  alterations,  this  was  held  to  be  a  valid  attestation  and 
subscription,  since  the  evidence  showed  that  they  signed  as 
witnesses  to  the  signature  of  the  testator,  and  not  as  witnesses 
merely  to  the  alterations.^^^ 

Contrary  view. — But  where  the  will  was  folded  and  sealed 
up  after  it  was  written  and  signed  by  the  testator,  and  the  sub- 
scribing witnesses,  at  the  request  of  testator,  wrote  their  names 
on  the  back  of  the  will,  it  was  held  not  to  be  a  good  subscrip- 
tion.-'^^2 

Statutory  Rule. — In  some  jurisdictions  by  special  statute 
the  witnesses  are  required  to  subscribe  their  names  at  the  end 
of  the  will.^"^  Hence  a  will  signed  by  the  testator  before  a  no- 
tary and  then  placed  in  an  envelope,  which  was  sealed,  and  on 
the  back  of  which  the  witnesses  wrote  their  names,  was  held 
not  to  be  sigiied  at  the  end  thereof.^^^ 

§222.     Order  of  signing. 

If  subscribing  witnesses  sign  their  names  to  a  will  before 
testator  signs  it,  and  leave  while  the  will  is  still  unsigned,  it  is 

349  Singers  Will,  44  N.  Y.  Supp.  354  Vogel  v.  Lehritter,  139  N.  Y. 
606.                                                                   223.     This  case  differs  from  Soward 

350  Fowler  v.  Stagiier,  55    Tex.  393.       v.  Soward,  supra,  in  that  it  was  de- 
■'«5i/n    re    Streatley     (1891).     P.       cided  under  a  statute  which  required 

172.  the   witnesses    to    sign    at    the    end 

352  Soward  v.  Soward,  1  Duv.  of  the  will,  while  in  Soward  v. 
(Ky. ),  126.  Soward    the    statute    only    required 

353  Conway's  Will,  124  N.  Y.  455.  the  witnesses  to  subscribe  the  will. 


242  LAW     OF     WILLS. 

evident  that  the  will  is  not  executed  in  compliance  with  law, 
for  the  witnesses  neither  saw  testator  sign  the  will  nor  heard 
him  acknowledge  his  signature  thereto.  In  such  cases  the 
will  is  held  not  to  be  executed  in  compliance  with  the  law.^^^ 
A  different  case,  however,  is  presented  where  one  or  more  of 
the  witnesses  sign  the  will  before  the  testator ;  but  immediately 
afterwards  and  as  a  part  of  the  same  transaction  the  testator 
signs  his  name  to  the  will.  In  this  latter  case  the  attesting 
witnesses  see  testator  sign  his  name.  The  only  question  to 
determine  is  whether  the  fact  that  the  witnesses  signed  before 
testator  invalidates  the  will.  Upon  this  question  there  is  some 
difference  in  judicial  decision  and  still  greater  confusion  in 
discussing  the  question.  The  view  that  seems  to  have  the 
weight  of  modern  authority  is  that  "in  acts  substantially  con- 
temporaneous it  can  not  be  said  that  there  is  any  substantial 
priority,''  ^°^  and  that  where  the  execution  is  completed  at  one 
transaction  it  can  not  be  held  that  the  will  is  rendered  invalid 
because  one  or  more  of  the  witnesses  signed  before  testator.^^'^ 
It  must  be  admitted  that  there  is  a  line  of  cases  in  which  it 
is  held,  contrary  to  the  weight  of  authority,  that  if  the  witnesses 
or  one  of  them  sign  before  testator,  even  at  the  same  transaction, 

355  Duffie  V.  Corridon,  40  Ga.  122.  356  Kaufman     v.     Caughman,    49 

(In  this   case  three  witnesses  were  S.   Car.   159. 

necessary.      Two     signed     the    will  357  O'Brien  v.  Gallagher,  25  Conn, 

before    testator.      At    a    subsequent  229;    Swift    v.    Wiley,    1    B.    Mon. 

occasion  testator  and  the  third  wit-  (Ky. )    114;  Upchurch  v.  Upchurch, 

ness  signed   in  the  presence  of  one  16  B.  Mon.    (Ky. ),   102;   Gibson  v. 

of    the    first    two    witnesses.      The  Nelson,     181     111.     122;     Mundy   v. 

other   witness   did   not   see   testator  Mundy,  15  N.  J.  Eq.  290;  Moale  v. 

sign  the  will  nor  hear  him  acknowl-  Cutting,  59  Md.  510;  Miller  v.  Mc- 

edge   his    signature.     The   will   was  Neil,   35   Pa.   St.   217;    Kaufman  v. 

held  to  be  invalid.)      Reed  v.  Wat-  Caughman,  49   S.  Car.   159;   Rosser 

son,   27   Ind.   443    (one  of  two  wit-  v.  Franklin,  6  Gratt.    (Va.),   1. 

nesses    neither    saw    testator    sign  There  seems  to  be  no  distinction 

the  will  nor  heard  him  acknowledge  between    such     cases   as    Mundy  v. 

his    signature);    Chisholm    v.    Ben,  Mundy,    15    N.    J.    Eq.    290;    where 

7  B.  Mon.  408 ;   Keyle  v.  Feuchter,  one   witness    signed   before   testator 

56  0.  S.  424      (neither  witness  saw  and  one  after,  and  cases  where  both 

testator  sign  or  heard  him  acknowl-  witnesses  signed  before  testator, 
edge  his  signature ) . 


LAW    OF    WILLS. 


243 


the  will  is  not  properly  executed,  and  should  be  refused  admis- 
sion to  probate.'^^* 

In  another  line  of  cases  the  question  of  the  effect  of  the  wit- 
nesses' signing  before  the  testator  is  indeed  presented,  but 
with  the  additional  fact  that  the  witnesses  left  before  testator 
sif-ned.  These  cases  are  undoubtedly  correct  in  holding  that  the 
will  is  not  properly  executed,  but  are  not  precedents  against 
the  weight  of  authority,  though  often  cited  as  such.^^^ 

So  another  line  of  cases  presents  the  question  of  the  validity 
of  a  will,  where  the  witnesses  sign  l)efore  testator  and  not  in 
his  presence,  and  afterwards  testator  signs  in  their  presence, 
and  they  then  acknowledge  their  signatures.  These  wills  are 
held  to  be  invalid  in  most  jurisdictions,  as  it  is  settled  by  the 
weight  of  authority  that  a  witness  must  sign  in  the  presence 
of  testator,  and  that  his  acknowledgment  is  not  a  substitute 
for  such  signature.^'"'  But  these  cases  are  not  in  support  of 
the  view  here  given  as  the  minority  view,  though  often  cited 
in  support  of  it.^^'^ 


358  Goods  of  Olding,  2  Curt.  Ecc. 
865 ;  Cooper  v.  Bockett,  3  Curt.  Ecc. 
643;  Shaw  v.  Neville,  1  Jur.  (N. 
S.),  408;  Brooks  v.  Woodson,  87 
Ga.  379;  14  L.  R.  A.  160;  Marshall 
V.  Mason  [Mass.  1900],  57  N.  E. 
340;  Jackson  v.  Jackson,  39  N.  Y. 
153 ;  Sisters  of  Charity  v.  Kelly,  67 
N.  Y.  409 ;  Knapp  v.  Reilly,  3  Dem. 
427 ;  In  re  McMulkin,  6  Dem.  347 ; 
Simmons  v.  Leonard,  91  Tenn.  183. 

These  cases  are  squarely  on  this 
point.  In  deciding  them,  however, 
the  courts  have  rested  on  the  sup- 
posed authority  of  other  cases 
which  do  not  turn  upon  this  point, 
though  some  obiter  dicta  in  the 
opinions  of  the  courts  discuss  it. 
Among  the  latter  are  some  cases 
in  which  the  question  has  merely 
been  raised.  Lewis's  Will,  51  Wis. 
101,  or  in  which  it  is  a  pure  obiter, 
Welty  V.  Welty,  8  Md.  15. 


359  See  the  first  note  in  this  sec- 
tion. 

360  Chase  v.  Kittredge,  11  All. 
(Mass.),  49. 

3G1  Another  case  sometimes  cited 
on  this  subject  is  one  in  which  a 
witness  signed  testator's  name,  then 
the  witnesses  wrote  their  names  and 
then  the  testator  made  his  mark,  it 
was  hold  that  the  will  was  valid, 
on  the  theory  that  as  the  testator 
authorized  the  writing  of  his  name 
the  signature  Avas  complete  befort 
the  witnesses  signed  and  his  mark 
was  superfluous.  Sechrest  v.  Ed- 
wards, 4  Met.  (Ky.),  163.  While 
correctly  decided,  this  case  has  evi- 
dently no  bearing  upon  the  topic 
under  discussion,  since  testator  ac- 
tually  signed   before   the   witnesses. 


244 


LAW     OF     WILLS. 


§223.     Necessity  and  value  of  attestation  clanse. 

Under  the  statutes  in  force  in  most  states  a  formal  attesta- 
tion clause  is  not  necessarv.^^^  ^^^\T  form  of  signing  wliicL 
shows  that  it  is  done  animo  attestandi  is  sufficient.^^"^  It  is 
sufficient  for  the  witnesses  to  subscribe  their  names  after  the 
word  "witnesses."  ^'^'^  So  an  incomplete  attestation  clause, 
such  as  "signed  and  sealed  in  the  presence  of/'  does  not  render 
the  will  invalid.^^^  The  signatures  of  the  witnesses,  without 
any  additional  word  explanatory  of  their  purpose  in  signing 
is  held  sufficient.^^^ 

But  while  not  indispensable,  a  full  attestation  clause 
is  of  the  highest  value.  It  removes  all  doubt  as  to  the 
animus  attestandi,  and  on  proof  of  the  signatures  is  prima  facie 
evidence  that  tlie  acts  therein  recited  have  all  been  properly 
done.^^^  This  is  true  even  where  the  subscribing  witnesses  have 
forgotten  what  took  place  at  the  time  of  executing  the  will.^"^ 


362  Berberet  v.  Berberet,  131  Mo. 
399;  Forsaith  v.  Clark,  21  X.  H. 
409;  Allaire  v.  Allaire,  37  X.  J. 
L.  (8  Vr.),  312:  39  X.  J.  L.  (10 
Vr.),  113;  Baskin  v,  Baskin,  36  X". 
Y.  416. 

363  Roberts  v.  Phillips,  4  El.  & 
Bl.  450;  Bryan  v.  White,  5  E.  L. 
&  Eq.  579;  Pots  v.  Felton,  70  Ind. 
166;  Olerick  v.  Ross,  146  Ind.  282: 
Robinson  v.  Brewster,  140  111.  649; 
Ela  V.  Edwards,  16  Gray  (Mass.), 
91;  Osborn  v.  Cook,  11  Cush. 
(Mass.),  532;  Fatheree  v.  Lawrence, 
33  Miss.  585 ;  Jackson  v.  Jackson, 
39  N.  Y.  153 :  Waddington  v.  Buzby, 
45  X.  J.  Eq.  173;  Fry's  Will,  2 
E.  I.  88. 

384  Olerick  v.  Ross,  146  Ind.  282. 

365  Herbert  v.  Berrier,  81  Ind.  1  : 
Hallowell  v.  Hallowell,  81  Ind. 
251. 

S66  Berberet  v.  Berberet,  131  Mo. 
399;  See  Sec.  221. 

367  Denpree  v.  Deupree,  45  Ga. 
415;  Swain  v.  Edmunds,  54  X.  J. 
Eq.  438:  53  N.  J.  Eq.  142:  Darnell 
V.  Buzby,   50   N.   J.   Eq.   725;    Far- 


ley V.  Farley,  50  X.  J.  Eq.  434; 
Avers  v.  Ayers,  43  X.  J.  Eq.  565; 
Allaire  v.  Allaire,  37  N.  J.  La. 
312;  Mundy  v,  Mundy,  15  X.  J. 
Eq.  290 :  McCurdy  v.  Xeal,  42  X.  J. 
Eq.  333 ;  Turnure  v.  Turnure,  35 
X.  J.  Eq.  437;  Mandeville  v.  Par- 
ker, 31  X'.  J.  Eq.  242;  Boylan  Ads. 
Meeker,  4  Dutch.  274;  Compton 
V.  Mitton,  7  Hal.  70;  Tappen  v. 
Davidson,  27  X.  J.  Eq.  459;  Jack- 
son V.  Jackson,  39  X.  Y.  153;  Rugg 
V.  Rugg,  83  X.  Y.  592;  In  re  Cott- 
rell,  95  X^.  Y.  329;  In  re  Hunt,  110 
X.  Y.  278;  Clark  v.  Duunavant,  10 
Leigh    (Va.),   13. 

Thus  an  attestation  clause  which 
recites  the  facts  is  prima  facie  evi- 
dence that  testator  signed  the  will 
in  due  form :  Alpaugh's  Will,  23 
X'.  J.  Eq.  507 :  and  that  the  wit- 
nesses were  present.  Kirkpatrick's 
Will,  22  X.  J.  Eq.  463. 

368  Thompson  v.  Owen,  174  111. 
220 :  Barnes  v.  Barnes,  06  Me. 
286:  Farley  v.  Farley,  50  X.  J. 
Eq.  434;  Tappen  v.  Davidson,  12  C, 
E.  Gr.  459. 


245 

LAW     OF     WILLS. 

§224.     Residence  of  witnesses. 

In  some  states  it  is  required  by  statute  that  the  witness 
write  his  place  of  residence  opposite  his  name.  Such  provi- 
sions are  held  txD  be  directory  only,  and  the  omission  ol  the 
place  of  residence  does  not  invalidate  the  will  unless  the  stat- 
ute expressly  gives  such  effect  to  the  omission.=^«« 

PART  V— PUBLICATION. 


§225.     Publication. — Definition. 

Publication  is  the  act  of  making  it  known  in  the  presence  of 
witnesses  that  the  instrument  U>  be  executed  is  the  last  will 
and  testament  of  the  testator.^^^ 

§226.     Form  of  publication. 

It  is  not  necessary  to  constitute  publication  that  the  con- 
tents of  the  will  be  made  known  to  tlie  witnesses,^^^^  nor  is  it 
material  whether  publication  precedes  or  follows  the  signing 
of  the  will.^^2  Publication  may  be  made  before  the  will  is 
signed  if  it  is  signed  as  part  of  the  same  transaction,^^ ^^  and  it 
may  also  be  made  while  the  witness  is  in  the  act  of  signing  his 
name.^"^^  But  if  made  after  execution  is  complete,  at  another 
time,  it  is  not  sufficient.^'^  ^ 

Publication  mav  be  made  by  the  express  declaration  ot  the 
testator  that  the  instrument  is  his  will,  or  by  that  of  some  third 
person,  as  the  attorney  who  draws  the  will,  in  the  presence  of 
testator  when  adopted  by  the  words  or  acts  of  testator  as  his 

369  Succession    of    Justus,   47    La.  372  Ayres  v.  Ayres    43  N-  J^  ^q- 

Ann.  302;   In  re  Phillips,  98  N.  Y.       565;   Jackson  v.  Jackson,  39  N.  Y. 

267 ;    Dodge    v.    Finlay,    57    N.    Y.       153.  t^-  i^      -,0  ^     T 

„"  373Errickson  v.   Fields,   30   M.  J. 

bupp.  '■    •  ,T      1    n     Ki     -KT        TTn     634-     Mickle     V.     Matlack,    17 

sToHildreth    v.    Marshall,    51     -N.       ii.q.    d^-i  ,     luicivic 

J    Eq.  241 ;   Gilbert  v.  Knox,  52  N.       N.  J.  L.  86. 

Y     125;    Thonipson    v.    Stevens, -62  -. /.  ..  Phillips    98  N.   Y^  267. 

N.   Y.   634;    In  re   Beckett,    103   N.  375 /n  re  Dale,  56  Hun,   169. 

Y.  167. 

371  Coffin   V.    Coffin,    23   N.    Y.    9; 
Voorhis's  Will,   125  N.  Y.  765. 


246  LAW     OF     WJLLS. 

own.^'^''     Thus  Avliere  the  scrivener  told  testatrix  in  the  pres- 
ence of  the  attesting  witnesses  that  he  had  brought  them  to 
witness  her  will,  and  she  thereupon  signed  it  in  their  presence, 
with  full  knowledge  of  its  contents,  it  was  held  to  be  a  valid 
execution  including  publication.^^'      It  may  be  made  by  ref- 
erence to  the  instrument  as  a  "will"  without  any  formal  decla- 
ration.^^^  Or  such  description  of  the  scope  of  the  instrument 
as  shows  that  it  is  testamentary  in  its  nature  has  been  held  a 
valid  publication.^^''     It  is  also  a  good  publication  when  made 
by  the  acts  and  gestures  of  testator,  as  well  as  by  his  words. 
Any  method  whereby  he  communicates  to  the  witnesses  that 
the  instrument  is  his  last  will  and  testament  is  suificient.^^*^ 
And  where  testator  asks  the  subscribing  witnesses  to  meet  him 
at  a  certain  place  to  witness  his  will,  and  on  their  meeting  at 
such  place  testator's  acts  in  having  them  sign  as  witnesses, 
will,  together  with  his  previous  conversation,  be  a  sufficient 
publication.3^^      But  a  declaration  that  leaves  the  nature  of 
the  instrument  in  doubt  will  not  be  a  sufficient  publication. 
Thus,  where  the  testator  said  to  the  witnesses  "I  declare  the 
within  to  be  my  will  and  deed,"  such  declaration  was  held  not 
to  be  a  sufficient  publication.^^^     So  where  testatrix  concealed 
from  the  witnesses  the  fact  that  the  instrument  was  a  will,  and 
always  referred  to  it  a  "a  writing."  ^^^  The  witnesses  before 
whom  publication  is  required  to  be  made  are  by  statute  required 
to  be  the  witnesses  who  attest  and  subscribe  the  will.^^'* 

3T6Mundy   v.    Mundy,    15     N.     J.  L.  86;   Elkinton  v.  Brick,  44  N.  J. 

Eq.   290;   Elkinton  v.  Brick,  44  N.  J.  Eq.    154;    1   K   R.  A.   161;   Lane  v. 

Eq.    154;    Hildreth   v.   Marshall,   51  Lane,  95  N.  Y.  494;  In  re  Hunt,  110 

N.  J.  Eq.  241;   Voorhis's  Will,  125  N.   Y.   278;    In  re   Beckett,    103   N. 

N.  Y.  765.  Y.  167  :  Coffin  v.  Coffin,  23  N.  Y.  9. 

377  Hildreth    v.    Marshall,    51     N.  ssi  Robbins  v.   Robbins,   50   N.   J. 
J.    Eq.    241;    Denny   v.    Pinney,    60  Eq.   742. 

Vt.  524;  12  Atl.  108.  382  Lewis  v.  Lewis,  11  N.  Y.  220. 

378  Porter  v.  Ford,  82  Ky.  191.  3S3  Darnell     v.    Buzby,    50     N.    J. 

379  Beckett's      Will,     103      N.    Y.       Eq.   725. 

167;  In  re  Hunt,  110  N.  Y.  278.  384  Darnell     v.    Buzby,    50     K    J 

380Corapton    v.     Mitton,     7    Hal.  Eq.   725;    In  re  Phillips,   98   K     i 

70;   Buzby  v.  Darnell,  52  N.  J.  Eq.  267. 
337;    Mickle   v.   Matlock,    17    N.   J. 


LAW    OF    WILLS. 


247 


§227.     Necessity  of  publication. 

In  some  jurisdictions  publication  is  expressly  required  bj 
statute  as  a  requisite  to  the  validity  of  a  will.  States  of  this 
class  are  N^ew  York  and  New  Jersey.^^^ 

In  the  absence  of  a  statute  requiring  publication  is  it  neces- 
sary that  the  attesting  witnesses  know  that  the  instrument  to 
which  they  subscribe  their  names  is  a  will  ? 

While  there  is  some  diversity  of  judicial  opinion  on  this 
point,  especially  in  the  obiter  dicta,  the  great  weight  of  au- 
thority is  that  in  the  absence  of  express  statute  it  is  not  neces- 
sary that  witnesses  be  informed  that  the  instrument  attested 
is  a  will.^^*^  Thus,  where  the  testator  showed  witnesses  a  pa- 
per with  his  signature  and  asked  them  to  attest  it,  it  was  held 
to  be  a  sufficient  acknowledgment  of  the  signature  and  a  valid 
attestation.^ ^'^  The  fundamental  reason  for  this  rule  is  that 
the  legislature  has  prescribed  in  full  all  the  formalities  neces- 


385  Mundy  v.  Mundy,  2  McCart. 
290;  Combs  v.  Jolly,  3  N.  J.  Eq, 
625;  Swain  v,  Edmunds,  54  N.  J. 
Eq.  438;  53  N.  J.  Eq.  142;  Sey- 
mour V.  Van  Wyck,  6  N.  Y.  120. 

386  Wyndham  v.  Chetwynd,  1  Bur. 
414;  Bond  v.  Seavvell,  3  Bur.  1773; 
Trimmer  v.  Jackson,  reported  4 
Burns  Ece.  Law,  9th  ed.  102 ;  Moodie 
V.  Read,  7  Taunt.  361;  Leverett  v. 
Carlisle,  19  Ala.  80;  Barnewall  v. 
Murrell,  108  Ala.  366;  Canada's 
Appeal,  47  Conn.  450;  Porter's  Es- 
tate, 9  Mackey,  493;  Dichie,  v.  Car- 
ter, 42  111.  376;  Brown  v.  McAllis- 
ter, 34  Ind.  375 ;  Turner  v.  Cook, 
36  Ind.  129;  Scott  v.  Hawk,  107 
lo.  723;  Convey's  Will,  52  lo.  199; 
Hulse's  Will,  52  lo.  662;  Flood  v. 
Pragoff,  79  Ky.  607 ;  Welty  v.  Welty, 
8  Md.  15;  Watson  v.  Pipes.  32 
Miss.  451;  Tilden  v.  Tilden,  13 
Gray,  110;  Osborn  v.  Cook,  11  Cush. 
532  (modifying  Swett  v.  Board- 
man,  1  Mass.  258)  ;  Cilley  v.  Cil- 
ley,    34   Me.    162;    Linton's   Appeal, 


104  Pa.  St.  228;  Gable  v.  Ranch, 
50  S.  Car.  95;  Verdier  v.  Verdier, 
8  Rich.  135;  Dean  v.  Dean,  27  Vt. 
746;  Allen  v.  Griffin,  69  Wis.  529; 
Skinner  v.  American  Bible  Society, 
92  Wis.  209.  (This  point  was  que- 
ried in  Downie's  Will,  42  Wis.  66.) 

"Neither  is  it  necessary,  as  has 
been  insisted,  that  there  should  be 
proof  of  formal  publication  of  the 
will  by  the  testator.  The  will  may 
be  good  without  any  words  of  the 
testator  declaratory  of  the  nature 
of  the  instrument  or  any  formal 
recognition  of  the  instrument  or 
allusion  to  it."  Verdier  v.  Verdier, 
8  Rich.  135,  quoted  in  Gable  v. 
Ranch,  50  S.  Car.  95. 

387  In  re  Porter's  Will,  20  D.  C. 
493;  citing  and  following  White  v. 
Trustees,  6  Bing.  310;  Osborn  v. 
Cook,  11  Cush.  (Mass.),  532;  Hogan 
V.  Grosvenor  (10  Mete),  54;  Can- 
ada's Appeal,  47  Conn.  450;  Tilden 
V.  Tilden,  13  Gray,  110. 


248  LAW     OF     WILLS. 

sarv  to  a  valid  will,  and  the  courts  can  not  add  to  such  requi- 
sites.^^^ 

It  has  been  claimed  that  the  word  "attestation"  implies  that 
the  subscribing  witnesses  must  know  the  nature  of  the  instru- 
ment which  they  attest/^^^  This  meaning  of  the  word  "at- 
test" is  not,  however,  the  one  usually  accepted.'^^"  Some  doubt 
has  been  raised  upon  this  point  in  Ohio  by  a  recent  decision 
of  the  Supreme  Court.  The  Ohio  statute  does  not  expressly 
require  publication,  l)ut  the  court  held  that  "one  essential  to 
the  admission  of  a  writing  purporting  to  be  a  written  will  to 
probate  is  that  it  shall  have  been  acknowledged  by  the  maker 
as  his  will,  and  his  signature  acknowledged  in  the  presence 
of  two  subscribing  witnesses."^*^^  This  is  quoted  from  the 
syllabus,  which  under  the  rule  in  force  in  Ohio  is  "confined 
to  the  points  of  laAV  arising  from  the  facts  of  the  cause  that 
have  been  determined  by  the  court."*  In  spite  of  this  rule, 
analysis  of  this  case  shows  that  the  syllabus  is  an  ohiter  dic- 
tum. The  facts  were  that  the  witnesses  signed  a  will  before 
the  testator  signed  it,  and  that  they  never  saw  him  sign,  or 
heard  him  acknowledge  the  will  or  his  signature.  Under  the 
Ohio  statute  there  was  clearly  no  valid  execution,  irrespective 
of  the  question  of  publication,  which  question  was  not  pre- 
sented by  the  record  as  necessary  to  the  determination  of  the 
case.t  Accordingly  in  a  later  Ohio  case  decided  by  a  trial 
court,  the  court  held  that  a  will  was  valid  where  the  testator 
signed  in  the  presence  of  the  subscribing  witnesses,  but  did 
not  notify  them  that  the  instrument  was  a  will.^^^  In  some 
other  states  it  has  been  held  that,  even  though  the  statute  does 
not  require  publication,  the  attesting  witnesses  must  be  in- 
formed that  the  instrument  is  a  will.^^^ 


3S8"The    legislature  has  prescribed  39i  Keyl    v.   Feuehter,   56    O.     S. 

such  formalities  as  it  dfeemed  proper,  124. 

and  we  ought  not  to  add  to  them  *  Rule    VI.     Rules    of    Supreme 

formalities  by  construction."   Flood  Court. 

V.   Pragoff,    79    Ky.    007;    quoted   in  fSee  Sec.  222  3  92  wmiamson's  Will, 

Allen  V.  Griffin,  69  Wis.  529.  6  Ohio,  N.  P.  79. 

389  Roberts  v.  Welch,  46  Vt.   164.  393  Qdenwaelder  v.   Schorr,  8  Mo. 

390  Canada's     Appeal,     47     Conn.  App.    458 ;     Roberts    v.    Welch,    46 
450;   See  Sec.  189.  Vt.   164.      (Compare  Dean  v.  Dean, 

27  Vt.  746. ) 


LAW     OF     WILLS.  249 

It  is  well  settled  that  the  subscribing  witnesses  need  not  know 
the  contents  of  the  instruments^'* 

§228.     Publication    not    a    substitute    for    acknowledgment    of 
signature. 

Publication  is  not  a  substitute  for  the  acknowledgment  of 
the  signature  by  a  testator  who  has  not  signed  in  the  pres- 
ence of  the  attesting  witnesses.  Where  the  statute  requires 
both,  both  must  be  done.^^^  It  is  possible,  however,  for  one 
statement  to  constitute  both  acknowledgment  and  publication. 
Thus,  where  testator  produces  the  instrument  already  signed, 
shows  it  to  the  witnesses  in  such  a  way  that  they  can  see  his 
signature  and  declares  that  it  is  his  will,  such  acts  and  decla- 
ration will  constitute  an  acknowledgment  of  the  signature  and 
a  publication  of  the  wilL^*^^  But  where,  under  similar  circum-  ' 
stances,  the  will  is  so  presented  to  the  witnesses  that  they  can 
not  see  the  signature  of  testator,  such  declaration  is  a  good 
publication  but  not  a  good  acknowledgment  of  the  signature  of 
the  testator.s^'^ 

304  Leverett    v.    Carlisle,    19    Ala.  306  Ludlow   v.    Ludlow,    36    N.    J. 

80;    Barker    v.    Bell,    49    Ala.    284;  Eq.    597;    Baskin   v.    Baskin,    36   N. 

Grimm  v.  Tittman,  113  Mo.  56.  Y.    416;    Gilbert     v.    Knox,    52     N. 

395Laing's   Will,    17   N.   J.   L.   J.  Y.    125;    In   re    Higgins,    94   N.   Y. 

266;    Den    v.    Mitton,    12    N.    J.    L.  544;   In  re  Phillips,   98  N.  Y.  267; 

70;    Ludlow    V.    Ludlow,    30    N.    J.  In  re  Hunt   110  N.  Y.  278. 
Eq.  597;  Robbins  v.  Bobbins,  50  N.  so- Lewis  v.  Lewis,  11  N.  Y.  220; 

J.  Eq.   742.  Baskin  v.  Baskin,  36  N.  Y.  418. 


250  LAW    OF    WILLS. 


CHAPTER   Xlll. 

EXTRINSIC  ELEMENTS  OF  HOLOGRAPHIC,  MYSTIC 
AND  NUNCUPATIVE  WILLS. 


PART  I— HOLOGRAPHIC  WILLS. 


§229.     General  nature  of  Holographic  wills. 

The  holographic  or  olographic  will  is  a  will  written  entirely 
by  testator  and  signed  by  him.-^  It  is  valid  where  written  by 
testator,  even  though  the  handwriting  is  disguised.^ 

It  is  a  type  of  will  which  in  the  main  originates  in  those 
states  of  the  Union  in  which  the  Roman  law  was  once  in  force. 
From  these  states  it  has  been  adopted  by  statute  into  other 
states.  Its  origin  may  also  be  found  in  the  law  of  testaments 
in  England  before  the  legislation  of  this  century  added  to  the 
extrinsic  elements  of  the  will. 

The  holographic  will,  arising  from  these  two  sources,  is  by 
statute  merged  into  a  common  type,  which  is  found,  with  slight 
variations,  in  about  a  third  of  the  American  states.  The  holo- 
graphic will  is  not  different  in  its  inherent  elements  from  the 
formally  executed  wills.     Xo  set  form  of  words  is  necessary 

1    Pearson's   Estate,   99    Cal.   30;  Ann.    868:     Wilborn    v.     Shell,    59 

Soher's   Estate,   78    Cal.   477;    In  re  Miss.  205;   Alston  v.  Davis,   118  N. 

Shillaber,   74   Cal.    144;    5   Am.   St.  Car.  202;  White  v.  Helmes,  1  McC. 

Rep.    4.3.3;    Toeble   v.    Williams,    80  430. 

Ky.  001  ;  Baker  v.  Dobyns,  4  Dana,  2  Hannah  v.  Peake,  2  Mar.   (Ky.), 

221 ;  Pobertson's  Succession,  49  La.  133. 


LAW     OF     WILLS.  251 

to  express  testamentary  intent,  but  it  must  appear  from  the 
instrument  that  testator's  intention  was  to  make  a  testamentary 
disposition.^ 

If  testamentary  intent  is  plain  on  the  face  of  the  instrument 
it  may  be  in  the  form  of  a  letter,  and  need  not  term  itself  a  will.^ 
Thus,  an  informal  instrument  reciting  "This  is  to  serifey  that 
ie  levet  to  mey  wife  Real  and  persnal  and  she  to  dispose  for 
them  as  she  wis"  was  held  to  be  a  valid  holographic  will.^  And. 
a  clause  in  a  letter,  "If  I  should  die  or  get  killed  in  Texas  the 
place  must  belong  to  you  and  I  should  not  wish  you  to  sell  it" 
was  held  a  good  holographic  will,  although  part  of  the  letter 
in  which  this  clause  was  found  was  not  testamentary  in  its 
nature.**  But  where  the  instrument  is  a  narrative  of  what  dis- 
position testator  intends  to  make,  and  not  or  itself  purporting 
to  dispose  of  his  property,  it  is  not  entitled  to  probate  as  a  will.'^ 

§230.     Formalities  of  Holographic  wills. 

The  peculiarities  of  the  holographic  will  lie  entirely  in  the 
extrinsic  elements  of  execution,  attestation  and  the  like. 
Witnesses. 

First.     In  most  states  the  holographic  will  needs  no  wit- 
nesses as  requisite  to  its  validity.^ 
Tiandwriting. 

Second.  The  holographic  will  must  be  entirely  in  the  hand- 
writing of  testator,  at  least  as  to  every  part  necessary  to  its 

3/w  re  Spratt    (1897),  P.  28;   66  found   that  it  was  a  will,   and   the 

L.  J.  P.  D.  &  A.  N.  S.  25;  75  Law  T.  question  of  the  admissibility  of  evi- 

Rep.  518;  Mitchell  v.  Donahue,  100  dence  was  not  passed  upon  by  the 

Cal.  202 ;   Pena  v.  New  Orleans,   13  Supreme    Court. 

La.  Ann.  86;  Morvaut's  Succession,  6  Alston    v.    Davis,    118     N.    Car. 

45  La.  Ann.  207;    Alston  v.   Davis,  202. 

118  N.  Car.  202  7  Easton's     Estate     (D.     C),     23 

*In    re    Shillaber,    74    Cal.    144;  Wash.  L.  Rep.  789. 

5  Am.  St.  Rep.  433 ;  Alston  V.  Davis,  «  Morris   v.   Morton,   —   Ky.   — ; 

118  N.  Car.  202.  20    S.    W.    287;    and    see   the   cases 

5  Mitchell    V.    Donahue,    100    Cal.  cited   in  this  chapter.     Mclntire  v. 

202.  In  this  case  the  trial  court  Mclntire,  8  Maekey  (D.  C),  482. 
admitted  evidence  to  the  effect  that  •        Contra,  in  Wyoming,  Neer  v.  Cow- 

the    paper    was   not    intended    as    a  hick,  4    (Wyom.)    49;   31  Pac.  862; 

will    but   as   a    certificate    that   the  18  L.  R.  A.  588. 
signer  had  made  a  will.     The  jury 


252 


LAW     OF     WILLS. 


validity.  A  will  written  on  the  printed  form  by  filling  in  blanks 
is  not  a  good  holographic  will  f  nor  is  a  will  a  good  holograph 
where  written  under  a  printed  heading  where  the  figures 
"189 — "  were  printed  and  testator  completed  the  date  by  filling 
in  the  blank.^^  But  the  addition  in  the  handwriting  of  an- 
other, of  words  which  can  be  rejected,  leaving  the  residue  in  the 
handwriting  of  testator  a  valid  will,  does  not  prevent  the  will 
from  being  a  good  holograph.^ ^  And,  while  the  will  must  be 
written,  it  is  proper  to  use  figures  instead  of  words  to  indicate 
the  amount  of  the  legacy,  and  the  will  is  not  thereby  inval- 
idated.^^ As  in  other  wills  the  writing  may  be  in  lead  pencil.^^ 
Date. 

Third.  It  is  generally  provided  that  a  holographic  will 
must  be  dated.  The  date  must  show  the  year,  month  and  day 
in  order  to  make  the  will  valid.^^  The  date  may  appear  any- 
where upon  the  will.  It  may  appear  at  the  beginning  of  the 
will  or  in  the  body  of  it,^^  or  it  may  follow  the  signature  of 
testator;  ^^  and  the  fact  that  a  hologTaphic  will  is  composed 
of  two  parts  each  signed  by  testator,  but  the  whole  dated  only 
once,  does  not  raise  a  presumption  that  the  two  parts  were 
written  on  different  days.^''' 
Place  of  signature. 

If  the  statute  specifically  requires  testator's  signature  to  be 
placed  at  the  end  of  the  holographic  will,  a  will  headed  with 
testator's  name  and  entirely  in  his  handwriting,  but  not  signed 
by  him  at  the  end  thereof,  is  invalid.^*  Unless  the  statute 
specifically  require  it,  the  signature  is  not  necessarily  at  the 

9  Rand's  Estate,  61  Cal.  468;  Heffner  v.  Heftner,  48  La.  Ann. 
Billing's  Estate,  64  Cal.  427.  1088;  Fuentes  v.  Gaines,  25  La.  Ann. 

10  Kobertson's   Succession,   49   La.       85. 

-^^-    868.  15  Zerega  v.  Percival,  46  La.  Ann. 

iiMcMichael  v.  Bankston,  24  La.       590. 

■^^-  ^^1-  ^^  Fuqua's  Succession,  27  La.  Ann. 

12  Vanhille's     Succession,    49     La.       271. 

^^"-   lO''-  i^Lagrave   v.    Merle,    5    La.   Ann. 

13  Philbrick   v.    Spangler,    15    La.       278. 

^"-  4^-  18  Armani's    Will,    43     La.     Ann. 

14  Martin's    Estate,    58    Cal.    530;        310;  26  Am.  St.  Rep.  183. 


LAW    OF    WILLS.  253 

end  of  the  will,  but  may  appear  in  the  body  of  the  will  as  well, 
if  inserted  there  with  intent  to  make  such  name  a  signature.-^ ^ 

But  the  insertion  of  testator's  name  in  such  place  is  an  am- 
biguous act  at  the  most,  and  is  'prima  facie  not  a  final  signa- 
ture.^^ Xor  is  an  endorsement  by  a  testator  named  Roy  on 
the  back  of  his  will  "Roy's  will"  a  sufficient  signing  where  it 
does  not  appear  from  the  will  that  testator  intended  such  name 
as  a  signature.^^ 

While  a  holographic  will  does  not  need  witnesses,  the  ad- 
dition of  the  names  of  witnesses  to  a  holographic  will  does  not 
thereby  invalidate  it  as  a  holographic  will.^^ 

On  the  other  hand,  a  will  which  is  entirely  in  the  handwriting 
of  testator  and  signed  by  him  is  a  good  holographic  will,  al- 
though an  unsigned  attestation  clause  follows  his  signature.^* 

§231.     Place  of  deposit  of  Holographic  will. 

In  some  states  it  is  provided  by  statute  that,  in  order  to  be 
valid,  a  holographic  will  must  be  found  at  testator's  death 
among  his  "valuable  papers ;"  ^^  and  in  such  jurisdictions 
when  found  among  articles  and  papers  of  small  value  it  is  not 
a  valid  holographic  will.^^  And'  the  sending  of  a  letter  con- 
taining holographic  testamentary  provisions  to  the  person  in- 
dicated therein  as  the  beneficiary  was  a  placing  it  in  the  hands 
of  such  person  "for  safe  keeping"  within  the  meaning  of  the 
statute.^® 


19  Tate     V.      Tate,      11      Humph.  So    where   testator    thought   that 
(Tenn. )   465.  witnesses  were  necessary  to  the  va- 

20  Ramsey   v.    Ramsey,    13   Gratt.  lidity  of  the  will.     Toebbe  v.  Will- 
(Va.)    664.  iams,  80  Ky.  661. 

21  Roy   V.    Roy,    16    Gratt.    (Va.)  24  Hughes   v.    Smith,    64    N.    Car. 
418.  493;    Winstead    v.    Bowman,    68    N". 

22  Langley  V.  Langley,  12  La.  Rep.  Car.    170;     Hooper    v.   MeQuary,    .5 
114;  Roth's  Succession,  31  La.  Ann.  Coldw.    (Tenn.)    129. 

315;    38    La,    Ann.    320;    Brown    v.  2-,  Little  v.  Lockman,  4  Jones  (N. 

Beaver,    3   Jones    (N.   Car.)    516.  Car.)    494. 

23  Allen  V.  Jeter,   6  Lea    (Tenn.)  26  Alston   v.    Davis,    118    N.    Car. 
672;  Perkins  v.  Jones,  84  Va.  3.58;  202. 

Hill    V.    Bell,    Pliil.    L.     (N.    CarO 
132. 


254  LAW    OF    WILLS. 

The  fact  that  after  testator's  death  attorney  opened  the  en- 
velope in  which  the  holographic  will  was  sealed  at  the  request 
of  the  custodian  of  such  will,  does  not  invalidate  it.^^ 

PART  II— NUNCUPATIVE  WILLS  AT  COMMON  LAW. 


§232.     Definition  and  history  of  law  of  nuncupative  will. 

The  term  nuncupative  will  at  the  Roman  law  denoted  a  will 
which  Avas  published  orally  in  the  presence  of  witnesses.  It 
may  be  questioned  if  the  term  was  originally  used  of  oral  wills. 
It  is  contended  that  the  primary  meaning  was  that  of  a  written 
will  published  orally.^^ 

The  nuncupative  will  at  common  law  is  a  very  different  thing 
from  the  nuncupative  will  of  Louisiana.  At  common  law  it  is 
an  oral  testament  made  under  such  circumstances  that  it  is  en- 
forceable at  law.29  What  the  circumstances  are  which  make 
an  oral  will  enforceable  is  the  subject  of  discussion  in  the  fol- 
lowing sections. 

At  the  common  law,  as  we  have  seen,  no  will  could  be  made 
whereby  real  property  was  devised  before  the  Statute  of  Wills, 
except  by  special  custom.  The  statement  sometimes  made,  that 
at  the  common  law  no  oral  will  of  lands  could  be  made  is  true, 
but  as  no  written  will  could  be  made,  either,  it  does  not  add 
much  to  the  history  of  the  oral  will.  The  Statute  of  Wills  pro- 
vided that  lands  might  be  devised  'by  will  and  testament  in 
writing.'  ^o  Under  such  statute  there  was  no  opportunity  for 
an  oral  will ;  and  no  land  could,  of  course,  be  devised  except  by 
writing.  But  by  special  custom  in  some  isolated  cases  land 
might  pass  by  a  nuncupative  will  at  the  common  law.  "In  some 
cities  and  boroughs  lands  may  pass  as  chattels  by  will  nuncupa- 
tive or  parol  without  writing."  ^i 

27  Stewart's     Succession,    51    La.  ally  a  testament,   it  Ts  very  gener- 

Ann.  1553.  ally    spoken    of     as    a    nuncupative 

2s  Maine's   -Ancient   Law,   p.   212;  will,   and   this   term   is   accordingly 

Schouler  on  Wills,  Sec.  361.  here  employed. 

While   a   nuncupative   instrument  3o  32  Hen.  VIII,  C.  1.     See  Sec.  15 

could  not  in  most  jurisdictions  pass  3i  Coke    on    Littleton,    Sec.    1G7; 

realty,    and    therefore   was    technic-  citing  Britton,  fol.  164,  212,  b. 


LAW     OF     WILLS. 


255 


The  ecclesiastical  law,  as  we  have  seen,  did  not  require  any 
formalities  in  the  execution  of  a  testament  passing  personalty.^'^ 
It  seems  to  be  the  general  opinion  of  writers  that  originally 
the  ecclesiastical  law  did  not  require  the  formality  of  writing 
in  any  case,  but  that  nuncupative  testaments  were  as  valid  for 
all  purposes  as  written  ones.^^ 

This  was  possibly  a  necessary  rule  of  law  in  a  community 
where  but  few  could  write.  Any  other  rule  would  no  doubt  have 
resulted  in  almost  universal  intestacy.  But  as  the  act  of  writ- 
ing became  generally  known  the  ecclesiastical  courts  began  to 
look  with  suspicion  upon  oral  testaments,  where  no  good  reason 
existed  for  not  having  them  in  writing.  The  exact  time  at 
which  this  feeling  of  distrust  developed  into  a  rule  of  law  for- 
bidding nuncupative  testaments,  except  in  certain  cases,  is  hard 
to  determine.  It  is  generally  placed  from  the  reign  of  Henry 
VIIT    to  that  of  Elizabeth.^^ 

Other  writers  appear  to  take  the  view  that  a  nuncupative  tes- 
tament might  be  valid  generally  in  the  reign  of  James  I.  Thus, 
Swinburne  said  of  nuncupative  testaments  merely:  "This 
kind  of  testament  is  commonly  made  when  the  testator  is  now 
very  sick,  weak  and  past  all  recovery.^^ 

The  Statute  of  Wills,  32  Hen.  VIII,  c.  1,  did  not  affect 
testaments  of  personal  property  in  any  way;  and  the  law  de- 
veloped by  gradually  restricting  nuncupative  testaments  to  cases 
where  the  testator  was  in  extremis,  but  not  attempting  to  con- 
trol them  further. 

The  case  of  Cole  v.  Mordaunt,  4  Ves.  196,  called  the  atten- 
tion of  the  public  to  the  great  danger  of  so  lax  a  rule.  In  that 
case  testator  when  advanced  in  years  had  married  a  young 
woman.  Her  conduct  during  her  married  life  was  imprudent 
if  not  depraved.  He  died  leaving  a  written  will  by  which 
a  considerable  part  of  his  property  was  bequeathed  to  charitable 
purposes.  The  widow  by  subornation  of  perjury  induced  nine 
witnesses  to  swear  that  testator  had  made  a  nuncupative  testa- 

32  See  Sec.  157.  Hazelion,  20  Johns.    (N.  Y.)    502. 

33  Kent's  Commentaries,  Vol.  IV,  35  Swinburne,  pt.  1,  Seq.  12,  par, 
p.   516.                                                              1. 

34  Perkins,    See.    476 ;     Prince    v. 


256 


LAW    OF    WILLS. 


ment  in  extremis,  hj  which  he  revoked  his  written  testament 
and  bequeathed  his  property  to  his  widow.  The  conspiracy 
failed,  and  the  fictitious  testament  was  defeated.  At  the  hear- 
ing of  this  case  Lord  Nottingham  made  the  famous  remark, 
that  it  was  his  hope  "to  see  one  day  a  law,  that  no  written  will 
should  ever  be  revoked  except  by  writing." 

The  next  year  was  passed  the  Statute  of  Frauds,  29  Car.  II, 
c.  3.  The  question  as  to  who  was  the  author  of  this  famous 
statute  is  involved  in  much  dispute ;  but  it  seems  extremely  prob- 
able that  Lord  Xottingham's  support  greatly  facilitated  its  pas- 
sage ;  and  that  certain  sections  of  that  statute  were  formed  to 
meet  the  case  of  Cole  v.  Mordaunt.^*^ 


36  i>!)  Car.  II,  C.  3.  And  for 
prevention  of  fraudulent  practices 
in  setting  up  nuncupative  wills, 
which  have  been  the  occasion  of 
much  perjury,  be  it  enacted  by  the 
authority  aforesaid,  that  from  and 
after  the  aforesaid  four  and  twen- 
tieth day  of  June  no  nuncupative 
will  shall  be  good,  where  the  estate 
thereby  bequeathed  shall  exceed  the 
value  of  thirty  pounds,  that  is  not 
proved  by  the  oaths  of  three  wit- 
nesses (at  the  least)  that  were 
present  at  the  making  thereof ;  not 
unless  it  be  proved  that  the  testa- 
tor, at  the  time  of  pronouncing  the 
same,  did  bid  the  persons  present 
or  some  of  them,  bear  witness  that 
such  was  his  will  or  to  that  ef- 
fect; nor  unless  such  nuncupative 
will  were  made  at  the  time  of  the 
last  sickness  of  the  deceased,  and 
in  the  house  of  his  or  her  habita- 
tion or  dwelling  or  where  he  or 
she  hath  been  resident  for  the  space 
of  ten  days  or  more  next  before 
the  making  of  such  will,  except 
where  such  person  was  surprised  or 
taken  sick,  being  from  his  own 
home,  and  died  before  he  returned 
to  the  place  of  his  or  her  dwelling. 

See.  20.  And  be  it  fiu'ther  enact- 
ed.   That   after    six   months    passed 


after  the  speaking  of  the  pretended 
testamentary  words,  no  testimony 
shall  be  received  to  prove  any  will 
nuncupative,  except  the  said  tes- 
timony, or  the  substance  thereof, 
were  committed  to  writing  within 
six  days  after  the  making  of  the 
said  will. 

Sec.  21.  And  be  it  further  enacted, 
That  no  letters  testamentary  or 
probate  of  any  nuncupative  will, 
shall  pass  the  seal  of  any  court, 
till  fourteen  days  at  the  least  after 
the  decease  of  the  testator  be  fully 
expired ;  nor  shall  any  nuncupa- 
tive will  be  at  any  time  received 
to  be  proved  unless  process  have 
first  issue  to  call  in  the  widow  or 
next  of  kindred  to  the  deceased,  to 
the  end  that  they  may  contest  the 
same  if  they  pleasa 

Sec.  2.3.  Provided  always.  That 
notwithstanding  this  act,  any  sole 
heir  being  in  actual  military  service, 
or  any  mariner  or  seaman  being  at 
sea,  may  dispose  of  his  movables, 
wages  and  personal  estate  as  he 
or  they  might  have  done  before 
the  making  of  this  act. 

The  Wills  Act  of  1837,  1  Vict.  C. 
2G,  also  provided  for  nuncupative 
testaments. 


LAW     OF     WILLS.  ^^' 


These  statutes  have  been  reenacted  with  variations  through- 
out the  United  States.  Their  general  etiect  is  to  forbid  all  oral 
testaments  except  such  as  are  speciticallj  provided  for  by  the 
terms  of  the  statute.  The  common  law  rules  as  to  when  an  oral 
testament  may  be  held  valid  are  abrogated.  The  only  effect  of 
the  old  rules  is  to  modify  the  construction  of  the  statute  m  cer- 
tain cases.  Since  this  is  the  case,  any  attempt  to  make  an  exact 
statement  of  the  rules  as  to  nuncupative  testaments,  which  are 
in  force  in  each  jurisdiction,  would  be  useless.  The  general 
provisions  of  the  statutes  are,  however,  substantially  the  same  m 
England  and  the  United  States.  The  difference  between  the 
different  statutes  is  that  some  statutes  include  more  classes  of 
nuncupative  testaments  than  others.  The  provisions  control- 
ling each  class  are  substantially  uniform. 

§233.     Nuncupative  wills  made  by  testators  of  favored  classes. 

The  first  classification  in  nuncupative  wills  is  that  of  favored 
and  unfavored  classes  of  testators.     Testators  of  the  favored 
class  may  make  nuncupative  wills  without  regard  to  the  sur- 
rounding circumstances  or  to  the  specific  form  of  the  will.^^ 
Soldiers  and  sailors. 

The  first  class  of  favored  testators  is  composed  of  'soldiers' 
and  'sailors'  or  'mariners'  in  'actual  service,'  and  testators  who 
dispose  of  estates  below  a  certain  value.  A  soldier  is  any 
person  serving  the  government  in  a  military  capacity  irrespec- 
tive of  rank.  In  an  English  case,  an  army  surgeon  in  the  em- 
ployment of  the  East  India  Company  was  hold  to  be  a  'soldier' 
within  the  meaning  of  the  statute.^s  g^  volunteers  in  the  serv- 
ice of  the  government  are  'soldiers'.^^  But  between  the  time 
that  a  volunteer  enters  his  name  as  offering  his  services  to  the 
o-overnment,  and  the  time  that  he  is  formally  accepted  and  mus- 

37  In  some  jurisdictions  these  fa-  38  Goods    of    Donaldson,    2    Curt, 

vored   classes    do   not   exist.      Since  386. 

nuncupative    wills    now    exist    only  39  Leathers   v.   Greenacre,   53   Me. 

where   specifically   allowed   by   stat-  561;     Van    Deuzer    v.    Gordon,    39 
ute,   these   favorea   classes   have   no    .  Vt.  111. 
existence  where  not  created  by  stat- 
ute. 


268  I^W    OF    WILLS. 

tered  in,  such  volunteer  is  not  a  'soldier'  in  the  sense  of  the 
statute.'^  "^ 

Victual  sendee'  undoubtedly  includes  every  military  move- 
ment against  the  enemy.  It  begins  at  least  upon  entering  the 
country  of  the  enemy,  or  reaching  the  neighboi-hood  of  the 
enemy  so  that  the  army  has  begun  the  campaign.^^  It  prob- 
ably begins  upon  the  commencement  of  the  movement  which  has 
for  its  object  the  attack  upon  the  enemy,  whether  such  move- 
ment is  within  or  without  the  country  of  the  testator  and 
whether  the  army  has  reached  the  neighborhood  of  the  enemy  or 
not.  Thus,  it  was  held  that  the  Union- army  was  'in  actual 
service,' in  1864  as  soon  as  the  movement  on  Eichmond  began.^^ 
'Actual  service  is  not  confined  to  "those  excursions  from 
camps  and  quarters  in  the  enemy's  country,  which  are  designed 
to  bring  on  an  immediate  engagement."  '*^ 
Testators  owning  small  estates. 

In  some  jurisdictions  nuncupative  wills  were  good  to  dis- 
pose of  a  limited  amount  of  property.^ ^  Under  this  statute  if 
a  testator  attempted  to  dispose  of  an  indivisible  chattel,  such 
as  a  promissory  note,  the  value  of  which  was  in  excess  of  the 
amount  fixed  by  law,  the  will  was  invalid  as  a  whole,^^  while 
if  the  property  given  was  divisible,  it  was  good  as  to  the  amount 
allowed  by  statute.^  ^ 

§234.     When  nuncupative  wills  can  be  made  by  testators  of  un- 
favored classes. 

In  jurisdictions  where  others  than  the  especially  favored 
classes  are  allowed  to  make  nuncupative  wills  at  all,  these  others 
are  nearly  always  allowed  to  make  them  only  in  their  'last  ill- 

40  Pierce    v.    Pierce,    46    Ind.    86.  4*  Mulligan    v.    Leonard,    46    lo. 

41  Leathers   v.   Greenacre,   53  Me.       692. 

561 ;     Van    Deuzer    v.    Gordon,    39  45  Strieker  v.   Oldenburgh,   39   lo. 

Vt.    Ill;    Gould  V.   Safford,   39   Vt.       653. 

498.  46  Mulligan    v.    Leonard,    46    lo. 

42Botsford  V.  Krake,   1   Abb.  Pr.       692. 
N.  S.    (X.  Y.),  112. 

43  Leathers   v.   Greenacre,   53   Me. 
561. 


LAW     OF    WILLS. 


259 


ness.'  By  'last  illness'  is  undoubtedly  meant  the  illness  of 
which  testator  actually  dies.  If  he  makes  an  oral  will  in  what 
he  thinks  at  the  time  is  his  last  illness,  and  recovers  therefrom, 
such  will  is  invalid  as  not  being  made  in  the  last  illness  of 
testator.^'^  These  cases  are  chiefly  obiter  dicta  upon  this  point ; 
but  they  seem  to  show  the  current  of  judicial  opinion. 

A  'last  illness'  furthermore,  is  not  merely  a  delicate  physical 
condition  in  which  death  may  at  any  time  intervene  as  a  re- 
sult of  further  development.  Thus,  where  decedent  was  a  con- 
sumptive, but  Avas  still  able  to  go  about,  he  was  not  in  his  'last 
illness'  in  the  sense  of  the  statute  so  that  he  could  make  a 
nuncupative  will  even  where  he  died  on  the  following  day  of  a 
sudden  hemorrhage."^^  It  is  therefore  an  acute  disease,  or  the 
last  stage  of  a  chronic  disease  in  which  it  assumes  the  form  in 
Avhich  death  directly  ensues,  that  is  meant  by  a  'last  illness,' 
and  not  the  entire  duration  of  a  progressive  disease  which  ul- 
timately results  in  death.'*^ 

The  discussion  of  the  meaning  of  'last  illness'  is  complicated, 
as  will  be  seen  in  the  opinions  of  the  court  in  the  cases  already 
cited,  by  the  question  whether  a  nuncupative  will  made  by  a 
testator  in  the  acute  disease  from  which  death  ensues  is  valid 
where  the  testator  lived  so  long  after  making  his  nuncupative 
will  that  he  could  have  made  a  written  will  had  he  so  desired. 

Undoubtedly  the  provision  of  the  statute  allowing  nuncupa- 
tive wills  to  be  made  in  testator's  last  illness  was  meant  only 
to  prevent  an  enforced  intestacy  in  cases  where  approaching 
death  made  it  impossible  to  reduce  testator's  wishes  to  writing 
in  legal  form.  But  as  the  question  in  construing  a  statute  is  not 
what  did  the  legislature  mean  to  say,  but  what  does  it  mean 
by  what  it  has  said,  the  question  is  really  one  of  the  meaning  of 
the  term  'last  illness'. 


47  Morgan  v.  Stevens,  78  111.  287;  W.  &  S.  (Pa.),  184.  On  this  point 
Donald  v.  Unger,  75  Miss.  294;  see  O'Neil  v.  Smith,  33  Md.  569; 
Sadler  v.  Sadler,  GO  Miss.  251;  Donald  v.  Unger,  75  Miss.  294; 
Carroll  v.  Bonham,  42  NS  J.  Eq.  Harrington  v.  Stees,  82  111.  50. 
625;  Martinez  v.  Martinez,  19  Tex.  49  Donald  v.  Unger,  75  Miss.  ■€94; 
Civ.  App.  661 ;  48  S.  W.  532.  Carroll    v.    Bonham,    42    N.   J.    Eq. 

48  Werkheiser    v.    Werkheiser,    6  625 ;   Jones  v.  Norton,  10  Tex.  120. 


260  LAW    OF    WILLS. 

Upon  tliis  question  there  is  a  difference  of  judicial  opinion- 
In  the  majority  of  states  it  is  held  that  the  temi  'last  illness' 
means  an  illness  so  violent  that  testator  had  not  the  time,  op- 
portunity and  means  at  hand,  after  making  his  oral  will,  to 
make  a  written  will  in  legal  form.^*' 

Thus,  testatrix  had  been  sick  for  two  or  three  months.  She 
gave  verbal  directions  for  the  disposition  of  her  property  which 
were  subsequently  offered  as  a  nuncupative  will.  She  lived 
about  ten  days  longer  in  possession  of  her  faculties,  with  ample 
opportunity  to  make  a  written  will.  It  was  held  that  this  will 
was  not  made  during  the  'last  sickness'  of  testatrix  within  the 
meaning  of  the  statute.^ ^  So  where  the  evidence  disclosed  that 
after  making  a  nuncupative  will  testatrix  lived  twenty  hours 
in  possession  of  her  faculties,  that  she  then  became  unconscious 
and  died  the  following  day,  the  trial  court,  on  this  point, 
charo-ed :  "A  nuncupative  will  must  be  made  in  the  last  sick- 
ness, and  if  you  believe  from  the  evidence  that  (the  alleged 
testatrix)  after  making  the  alleged  nuncupative  will,  had  the 
time  and  opportunity  and  means  at  hand  to  have  reduced  it  to 
writing,  but  failed  to  do  so,  then  said  alleged  will  is  invalid." 
The  Supreme  Court,  Lumpkin,  J.,  said:  "We  think  the 
charge  actually  given,  is  about  as  accurate  and  proper  an  in- 
struction as  the  court  could  well  have  given."  ^^ 

In  other  states  it  is  held  that  a  will  made  during  the  'last  ill- 
ness,' as  already  defined,  is  a  valid  nuncupative  will  even  though 
testator  had  opportunity  after  making  such  will,  and  before 
his  death,  to  make  a  written  will.^^     It  is  apparently  not  neces- 

50  Johnston   v.    Glasscock,   2   Ala.  point).     Jones   v.   Norton,    10   Tex, 

218;     Scaife    v.    Emmons,    84    Ga.  120 ;  Reese  v.  Hawthorne,  10  Gratt. 

619;    Ellington   v.   Dillard,    42    Ga.  (Va.),    548. 

361 ;      Bellamy    v.    Peeler,    96     Ga.  si  Donald  v.  Unger,  75  Miss.  294. 

467;   O'Neill  v.  Smith,  33  Md.  569;  52  Bellamy  v.  Peeler,  96  Ga.  467. 

Donald    v.    Unger,    75    Miss.    294 ;  53  Bradford  v.  Glower,  60  111.  App. 

Lucas  V.  Goff,  33  Miss.  629 ;  Parki-  55 ;    Harrington    v.    Stees,    82    111. 

son    V.    Parkison,    12    Smed.    <fc    M.  50,    qualifying    Morgan    v.    Stevens, 

(Miss.),    672;    Carroll    v.    Bonham,  78  HI.  287:  Wiley's  Estate,  187  Pa. 

42  N.  J.  Eq.  625;   Dockum  v.  Rob-  St.  82;  Nolan  v.  Gardner,  7  Heisk. 

ison,  26  N.  H.  372 ;  Prince  V.  Hazel-  (Tenn.)    215:    Gwin    v.    Wright,    8 

ton.   20   .Tohns.    (N.   Y.),   .502    (the  Hump.    (Tenn.)    639. 
leading    American    case    upon    this 


LAW    OF    WILLS. 


261 


sary  to  the  validity  of  the  will  that  testator  should  believe  that 
he  was  about  to  die.  Thus  where  testator  was  warned  by  his  doc- 
tor to  make  a  will  and  after  attempting  to  make  a  nuncupative 
will  omitted  to  make  a  written  will,  through  undue  conhdence  in 
his  ultimate  recovery,  it  Avas  held  that  the  nuncupative  will 
would  be  valid  if  made  in  due  form.^"* 

§235.     Place  where  nuncupative  wills  can  be  made  by  member  of 
unfavored  class. 

A  member  of  the  unfavored  class  can,  under  many  statutes, 
make  his  nimcupative  will  only  when  he  is  at  his  own  home,  un- 
less he  is  surprised  or  taken  sick  away  from  home,  and  dies 
before  returning.  The  Statute  of  Frauds  defined  his  home  as 
his  dwelling  house  or  where  he  had  resided  ten  days  previous 
to  making  his  will.^^  Under  similar  statutes  from  which  the 
word  'surprised'  is  omitted,  it  is  held  that  a  testator  who  leaves 
his  home  when  seriously  ill,  and  becomes  worse  and  dies  on  the 
way,  may  make  a  valid  nuncupative  will  at  the  place  of  his 
death.^^ 

§236.     The  inherent  elements  of  the  nuncupative  will. 

As  in  the  case  of  written  wills  the  elements  of  a  nuncupative 
will  may  be  divided  into  the  inherent  and  the  extrinsic.  Of  the 
inherent  elements  the  animus  testandi,  the  intention  to  make  a 
will,  is  of  course  indispensable.  The  same  general  principles 
that  govern  this  subject  in  written  wills  apply  in  cases  of  nun- 
cupative wills  and  need  not  be  repeated. '^''^  Accordingly,  expres- 
sions of  regret  that  testator  had  not  made  a  will  together  with  a 
statement  of  what  sort  of  will  he  would  have  made,  do  not 
amount  to  a  nuncupative  will.^'^  As  in  written  wills,  it  is  not 
necessary  for  the  intention  to  make  a  will  to  be  formally  ex- 
pressed. If  it  appears  from  the  evidence  that  testator  when 
in  extremis,  expressed  his  wish  as  to  the  disposition  of  his  prop- 

54  Wiley's  Estate,  187  Pa.  St.  82.  s-  See  Ch.  V. 

55  29  Car.  II,  c.  3,  Sec.  19.  ss  Wiley's    Estate,     187     Pa     St. 

56  Gwin  V.  Wright,  8  Hump.  82 ;  Ridley  v.  Coleman,  1  Sneed. 
(Tenn.)    6.39;    Marks   v.    Bryant,   4  (Tenn.)    616. 

Hen.    &   M.    (Va.)     91. 


202  LAW    OF    WILLS. 

ertv  after  his  death,  the  intention  to  make  a  testamentary  dis- 
positition  suftlcientlj  appears.^^ 
Animus  nuncupandi. 

In  order  to  show  testamentary  intent  tlie  words  of  testator 
must  show  that  he  intends  that  his  words  shall  stand  as  his  will ; 
that  is,  that  he  intends  to  make  a  nmicnpative  will.  This  is 
meant  when  it  is  said  that  the  animus  nuncupandi,  miist  exist 
as  well  as  the  animus  testandi.'^^  But  it  seems  clear  that  th*-' 
intention  to  make  a  testamentary  disposition  by  the  words  used 
is  necessarily  the  ''intention  to  nuncupate" ;  that  the  one  can 
not  exist  without  the  other;  and  that  apt  words  for  one  idea 
will  express  the  other.*^^ 

Since  the  intention  to  make  a  nuncupative  will  is  necessarv 
to  its  validity,  it  follows  that  the  oral  declarations  of  testator 
as  to  the  disposition  of  his  property  which  he  intends  to  make 
by  a  written  will,  do  not  constitute  a  nuncupative  will.*^- 

In  a  recent  Illinois  case  the  alleged  testator  A  was  taken 
suddenly  ill,  and  an  operation  was  decided  on.  The  physicians 
assured  testator  that  there  would  be  no  danger  of  death  for 
twenty-four  hours.  A's  brother  asked  him  if  he  wished  to 
make  any  disposition  of  his  property.  A  said :  "All  right ;  you 
can  take  a  statement  of  how  I  want  it  fixed."  And  the  brother 
took  do^m  the  instructions  and  said:  "I  will  make  a  memo- 
randum, and  fix  it  up  in  shape.  If  you  think  it  is  proper  you 
can  sign  it  and  make  a  kind  of  will  of  it."  A  assented.  The 
next  morning  the  brother  received  a  telephone  message  that 
A  was  sinking  fast.  He  at  once  wrote  out  the  will  and  hurried 
to  the  hospital,  arriving  there  after  A's  death.  It  was  held 
that  A's  declaration  did  not  amount  to  a  nuncupative  will.^^ 

59  ilulligan  V.  Leonard,  46  lo.  62  Knox  v.  Richards  (Ga.) 
692.  (1900),     35     S.     E.     295;      Askins' 

60  "There  ought  ...  to  be  pres-  Estate,  20  D.  C.  12;  Grossman's 
ent  in  order  to  constitute  a  nun_  Estate,  175  111.  425;  Lucas  v.  Goff, 
cupative  will,  not  only  the  animus  33  Miss.  629;  Doekum  v.  Robinson. 
testandi  but  the  intention  to  nun-  26  N".  H.  372 ;  Male's  Will,  49  N.  J. 
cupate."  Porter's  Appeal,  10  Pa.  Eq.  266;  Porter's  Appeal,  10  Pa. 
St.   254.  St.   254. 

61  Bradford  v.  Glower,  60  111.  es  Grossman's  Estate,  175  111. 
App.   55.  425. 


LAW     OF     WILLS. 


263 


Even  where  all  the  formalities  of  a  nuncupative  will  were 
present  the  fact  that  testator  intended  to  have  it  reduced  to  writ- 
ing in  order  that  it  might  take  effect  was  held  to  prevent  it  from 
being  a  valid  nuncupative  will.^'*  So,  on  the  same  principle,  a 
defectively  executed  written  will  can  not  be  given  validity  as 
a  nuncupative  will.^^ 

The  courts  are  not  unanimous  upon  this  last  point,  however, 
and  in  some  jurisdictions  it  is  held  that  an  attempt  to  execute 
a  written  will  which  was  not  completely  executed  on  account 
of  an  "^act  of  God'  may  be  a  good  nuncupative  will.^*'  This  view 
of  the  law  which  apparently  ignores  an  essential  element  of 
nuncupative  wills,  is  due  in  part  to  a  desire  to  enforce  the  wishes 
of  testator,  and  in  part  to  the  influence  of  the  old  rule  that  be- 
quests of  personalty  were  valid  if  shown  to  be  testator's  wishes, 
without  regard  to  their  form. 

§237.     The  extrinsic  formalities  of  the  nuncupative  will, — The 
rogatio  testium. 

The  nuncupative  will  made  by  one  of  the  unfavored  class 
must  possess  certain  formalities,  in  accordance  with  the  local 
statute.^^  Most  statutes  allowing  nuncupative  wills,  agree  that 
in  order  to  make  a  valid  will,  testator  must  call  upon  the  wit- 
nesses to  the  requisite  number,  and  in  the  presence  of  the  re- 
quisite number,  to  bear  witness  that  the  words  spoken  by  him 

64  Porter's  Appeal,  10  Pa.  St.  53:  Thomas  v.  Wall,  3  Phill.  23; 
254.  Lewis  v.  Lewis,  3  Phill.  109;  Offut 

65  Stamper  V.  Hooks,  22  Ga.  603 ;  v.  Offut,  3  B.  Mon.  (Ky.)  163; 
Ellington  v.  Dillard,  42  Ga.  361;  Guthrie  v.  Owen,  10  Yerger,  339. 
Tabler  v.  Tabler,  62  Md.  601 ;  67  The  conversations  "it  is  true, 
Hebden's  Estate,  20  N.  J.  Eq.  473;  go  to  show  the  intent  of  decedent. 
Male's  Will,  49  N.  J.  Eq.  266;  But  this  is  not  enough.  Every  one 
Hunt  V.  White,  24  Tex.  643;  Reese  who  unaertakes  to  make  a  testa- 
V.  Hawthorne,  10  Gratt.  (Va.)  mentary  disposition  of  his  prop- 
548.  erty  must  conform  to  the  law  reg- 

Computations    by    testator    as   to  ulating  such  disposition,  and  if  he 

how  much   of   his   estate  is   due  _to  does  not  take  care  to  do  so  the  law 

each  child  is  not  valid  as  a  nuncu-  can  not  uphold  it."     Werkheiser  v. 

pative     will.       Williams     v.     Pope..  Werkheiser  6  Watts  &  S.   (Pa.  St.) 

Wright    (Ohio)    406.  184, 

66  Green    v.    Shipworth,    1    Phill. 


264  LAW    OF    WILLS. 

are  his  last  Avill.  This  formal  calling  upon  the  witnesses  to 
bear  witness  to  this  fact  is  known  as  the  rogatio  testium,  and  is 
a  necessary  element  of  a  nnncnpative  will.  Without  this  the 
will  is  invalid  no  matter  how  clear  the  testamentary  intent.^® 

''The  rogatio  testium,  the  calling  on  persons  to  bear  witness 
to  the  act  must  also  be  done  at  the  time  of  the  nuncupation,  and 
must  be  proved  by  two  or  three  witnesses  who  were  present  at 
the  time."  ^^ 

No  set  phrase  is  necessary,  however,  for  a  valid  rogatio 
testium.  While  it  is  desirable  that  testator  should  in  clear  and 
unmistakable  language  formally  ask  the  witnesses  to  bear  wit- 
ness that  his  words  are  his  last  will,  this  request  may  be  made 
informally.  In  an  Illinois  case  testator  who  was  about  to 
marry,  was  taken  ill  suddenly,  and  was  advised  by  A,  who  was 
present  with  B,  that  he  could  not  marry  owing  to  the  approach 
of  death.  A  said :  "If  you  tell  us  as  witnesses  what  disposition 
you  want  to  make  of  your  property,  we  will  testify  to  that  fact 
in  the  pro'bate  court,  and  that  will  do  as  well  as  a  written  will," 
Testator  then  spoke  of  his  intended  wife  and  said :  "It  has  been 
my  intention  all  along  that  she  shoukl  have  everything  I  have, 
real  and  personal,  and  that  is  my  will  now."  B.  said :  "This 
is  your  last  will  and  testament  made  in  our  presence  as  wit- 
nesses. Testator  said  "yes,"  and  then  after  a  pause  added :  "I 
want  my  life  insurance  policy  to  go  direct  to  her  without  going 
through  a  course  of  administration."  The  court  held  that  this 
was  a  sufficient  rogatio  testium,  t\iovi^  informal,  since  testator 
might  adopt  the  language  of  the  witnesses  in  his  conversation 

68  Asking's     Estate      (D.     C),     9  Haygood,  106  N.  Car.  468;   Wiley's 

Mackey,   102,  12;   19  Wash.  L.  Rep.  Estate,    187    Pa.    St.    82;    Taylor's 

260;   Sampson  v.  Browning,  22  Ga.  Appeal,    47    Pa.    St.    31;    Gwin    v. 

293;     Grossman's    Estate,     175    111.  Wright,     8     Hump.      (Tenn.)      639; 

425,    affirming    75    111.    App.    224;  Baker  v.  Dodson,  4  Hump.   (Tenn.) 

Arnett  v.  Arnett,  27  111.  247;   Bid-  342;   Winn  v.  Bob,  3  Leigh.    (Va.) 

die  V.  Biddle,  36  Md.   630;   Broach  140;     Page's     Will,     23     Wis.     69; 

V.    Sing.    57    Miss.    115;    Garner   v.  Pritchard's    Will",    37    Wis.    68. 

Langsford,   12   Smed.  &  M.    (Miss.)  69  Yarnall's  Will,  4  Rawle.   (Pa.) 

558;    Brown    v.    Brown,    2    Murph.  46. 

(N.    Car.)     350;    Seever    v.    Seever,  Contra,   Mulligan   v.   Leonard,   46 

2    Ohio    C.    C.    298;    Male's    Case,  lo.  692. 
49    N.    J.     Eq.    266;     Bundrick    x. 


0«K 

LAW    OF    WILLS. 


with  them;  and  his  desire  that  they  bear  witness  to  his  will 

appeared  clearly.'^"  . 

But  though  an  informal  rogat'io  testium  may  be  valid,  its  ab- 
sence will  invalidate  the  will.  Thus  a  statement  by  alleged  tes- 
tator to  his  brother:  ''You  can  take  a  statement  of  how  I  want 
it  fixed,"  followed  by  instructions  for  a  will  and  assent  to  the 
brother's  proposition  to  put  it  in  writing  by  the  next  day,  and 
have  testator  sign  it,  was  held  not  to  be  a  valid  nuncupative 
will,  not  only  as  lacking  the  intention  to  make  a  nuncupative 
will,  but  also  as  lacking  the  rogatio,  testiumP 

Where  decedent  said:  "I  was  to  be  married  next  Thursday. 
Tell  my  folks  to  give  Martha  Jane  Wade— my  intended  wif^- 
one  thousand  dollars  of  my  money,"  there  was  no  rogatio  tes- 
tium, and  the  will  was  therefore  invalid.-^^  ^nd  where  decedent 
said  Repeatedly :  "Everything  is  to  go.to  Willie— everything  is 
Willie's.  I  want  brother  Willie  to  have  everything.  It  has 
been  put  off.  I  intended  to  fix  it  so  that  there  would  be  no 
trouble,  but  it  has  been  put  off,"  there  was  no  sufiicient  rogatio 
testiumP  Nor  is  a  request  to  witnesses  to  pay  attention  to 
what  testatrix  says  a  sufficient  rogatio  testiumr^^  Under  some 
statutes  only  one  person  need  be  called  on  to  bear  witness  to 
the  execution  of  the  will ;  and  the  will  may  be  proved  by  the 
requisite  number  of  witnesses  who  were  not  called  on  to  bear 
witness  to  testator's  will. 

§238.     Number   and   competency   of  witnesses   to    nuncupative 
wills. 

The  number  of  witnesses  to  a  nuncupative  will  is  fixed  by 
statute  and  is  different  in  different  states.  Two  is  a  fav- 
orite number.  A  nuncupative  will  executed  before  a  less  num- 
.ber  of  competent  witnesses  than  that  fixed  by  statute  is  of  no 
validity.^^ 

•70  Harrington  v.  Stees,  82  111.  50.  ^*  Page's    Will,    23    Wis.    69. 

71  Grossman's     Estate,      175     111.  "^s  Emeric    v.    Alvarado,    64    Cal. 

.^25  529;   Biddle  v.  Biddle,  36  Md.  630; 

72Seever  v.   Seever,  2  Ohio  C.  C.  Long   v.    Foust,    109   N.    Car.    114; 

ngg  Vrooman  v.  Powers,  47   O.   S.   191 ; 

"73  Wiley's    Estate,     187    Pa,.    St.  Wiley's    Estate.    187    Pa.    St.    82; 

Mitchell    V.    Vickers,    20    Tex.    3^7. 


82. 


266  LAW     OF     WILLS. 

Where  the  statute  requires  the  testator  to  specially  request 
at  least  two  competent  witnesses  to  bear  witness  to  his  will,  the 
statute  is  complied  with  where  testator  calls  all  of  those  present 
to  bear  witness  to  his  will,  although  he  does  not  name  any  of 
them.'^ 

Under  the  statute  requiring  the  witnesses  to  bear  witness  to 
the  execution  of  the  nuncupative  Avill,  it  is  necessary  that  the 
witnesses  be  present  simultaneously  at  the  execution  of  such 
nuncupative  willJ^ 

The  general  rule  as  to  the  witnesses  to  a  nuncupative  will  is 
that  they  must  be  competent  and  disinterested.  Unless  modi- 
fied by  statute,  the  rules  of  common  law  control  the  competency 
of  witnesses  and  the  question  of  interest."^^  A  beneficiary  can 
not  act  as  an  attesting  witness  to  a  nuncupative  will ;  and  one 
to  whom  a  sum  of  money  is  bequeathed  if  the  son  of  testatrix 
shall  die  before  he  is  twenty-one,  is  a  beneficiary  in  this  sense.*^^ 
ISTor  will  a  release  of  his  interest,  after  the  will  is  probated, 
restore  his  competency.*'^  ^STor  will  a  statute  making  void  be- 
quests to  subscribing  witnesses  to  written  wills,  be  extended  by 
forced  construction  to  nuncupative  wills,  so  as  to  make  such  wit 
nesses  competent.^^ 

§239.     Reduction  to  writing. 

It  is  generally  provided  as  essential  to  the  validity  of  a  nuncu> 
pative  will,  that  it  be  reduced  to  writing  and  subscribed  by  ths 
requisite  number  of  competent  witnesses  within  the  time  fixed 
by  statute,  which  is  generally  a  very  short  one.  Omission  to 
comply  with  this  provision  renders  the  will  a  nullity.*^  Even 
if  reduced  to  writing  within  the  time  limit,  the  will  is  avoide'l 

78  Long    V.    Foust,    109    N.    Car.  so  Vrooman  v.   Powers,   supra. 

114.  81  Vrooman    v.    Powers,    supra. 

77  Wester  v.  Wester,  5  Jones   (N.  82  Askins's  Estate,  9  Mackey    (D. 
Car.)    95.  C.)     12;     Taylor's    Appeal,    47   Pa. 

78  Vrooman   v.   Powers,   47    0.    S.  St.   31;    George   v.   Greer,   53   Miss. 
191;    Haus   v.    Palmer,   21    Pa.    St.  495;  Martinez  v.  Martinez,  19  Tex. 
296;    Baker    v.    Dodson,    4    Humph.  Civ.  App.  661;   48  S.  W.  532. 
(Tenn.)    342. 

79  Vrooman   v.   Powers,   47    O.    S. 
191. 


LAW     OF     WILLS.  267 

if  not  also  subscribed  by  the  required  number  of  witnesses  with- 
in the  time  fixed  by  statute.^^ 

In  view  of  the  necessities  of  the  case  it  is  held  that  the  exact 
words  used  bj  testator  need  not  be  reduced  to  writing.  It  is 
sufficient  if  their  substance  can  be  thus  reduced.^"*  But  if  the 
words  of  testator  are  not  reduced  to  writing,  at  least  substan- 
tially, his  will  can  not  be  probated,^^  and  if  probated  can  be 
contested  on  the  ground  of  the  failure  to  reduce  the  will  sub- 
stantially to  writing.®^ 

§240.     What  can  pass  by  nuncupative  will. 

Under  a  few  of  the  earlier  statutes  real  as  well  as  per- 
sonal property  might  pass  by  a  nuncupative  will.®^  In  most 
states  it  is  provided  that  real  property  can  not  pass  by  a  nuncu- 
pative will;^^  nor  can  the  income  of  realty  be  devised  by  a 
nuncupative  will.^^ 

It  has  been  held,  however,  that  a  nuncupative  will  may  give 
a  legacy  chargeable  on  realty.*^"  But  it  is  held  that  a  nuncupa- 
tive will  of  all  the  property  which  testator  owned,  will  pass  the 
personal  property,  though  not  the  realty ;  and  where  the  debts 
are  equal  to  the  personal  estate,  that  such  will  can  charge  the 
payment  of  testator's  debts  upon  the  realty,  exonerating  the 
personalty.^^ 

83  Welling     V.    Owings,    9     Gill.  Mich.    438;     Sadler    v.    Sadler,    60 

(Md.)    467.  Miss.     251;     Smithdeal     v.     Smith, 

84Bolles  V.   Harris,   34   O.   S.   38.  64   N.   Car.   52;    Skinner   v.    Black- 

85  Bolles    V.    Harris,    supra.  burn,  4  Ohio  C.  C.   325 ;   Cooper  v. 

86  Bolles    V.    Harris,    supra.  Pogue,  92  Pa.  St.  254 ;   37  Am.  Rep. 
S7  Gillis  V.  Weller,  10  Ohio,  462:  681;   Johnson  v.  Johnson,  92  Tenn. 

Ashworth  v.  Carleton,   12   Ohio   St.  559;   Lewis  v.  Aylott,  45  Tex.  190; 

381.  Moffett    V.    Moffett,    67    Tex.    642; 

But  this  has  since  been   changed  Page  v.   Page,   2   Rob.    (Va.)    424; 

in  Ohio  by  statute.     R.  S.  of  Ohio,  Davis's  Will,  103  Wis.  455. 

Sec.  5991.  89  Page    v.    Page,    2    Rob.     (Va.) 

8s  McLead    v.    Dell,    9    Fla.    451 ;  424. 

Pierce  v.  Pierce,  46  Ind.  86 ;  Cooke  "o  Seever      v.      Seever,      2      Ohio 

V.  Cooke,  3  Litt.  (Ky.)  238;  Palmer  C.   C.   298. 

V.    Palmer,    2     Dana.      (Ky.)      391;  si  Skinner   v.    Blackburn,   4   Ohio 

McCans   v.   Board,    1   Dana.    (Ky.),  C.  C.   325. 
341:      Campbell      v.     Campbell,     21 


268  i^w  OF  WILLS. 


PART  Ill-NUNCUPATIVE  TESTAMENTS  AT 
LOUISIANA  LAW. 


§241.     Nuncupative  testaments  by  public  act. 

In  Louisiana  the  expression  'nnncupative  testament'  is  al- 
ways used  by  the  statute.  A  nuncupative  testament  in  Louisiana 
is  a  very  different  thing  from  a  nuncupative  will  at  common  law, 
as  in  Louisiana  it  is  of  two  kinds,  nuncupative  testament  by 
public  act,  and  nuncupative  testament  by  private  act.  They  may 
be  best  defined  separately. 

A  nuncupative  will  by  public  act  is  one  dictated  by  testator 
to  a  notary  public,  and  written  down  by  him  from  such  dicta- 
tion. This  must  be  done  in  the  presence  of  three  witnesses  re- 
siding in  the  place  where  the  will  is  executed,  or  of  five  not 
residing  in  such  place.  It  must  be  read  to  testator  in  the  pres- 
ence of  the  witnesses,  and  testator  must  in  their  presence  de- 
clare that  he  understands  it  perfectly,  and  that  he  persists 
therein. ^^ 

A  will  is  not  invalidated  by  the  fact  that  the  notary  omitted 
to  record  his  bond  in  the  auditor's  office,  a  fact  which 
was  ground  for  suspension,  when  he  was  not  in  fact  suspended.^^ 

It  is  sufficient  if  the  notary  takes  do^vn  the  substance  of  the 
will  as  dictated  to  him.  He  must  "put  doAvn  all  of  her  inten- 
tions expressed  by  her,  with  a  due  regard  to  identity  of  thoughts, 
and  not  of  words."  ^"^  And  if  the  notary  suggests  the  appropriate 
language  in  which  to  express  the  intent  of  testator,  it  does  not 
invalidate  the  will.^^  So  if  counsel  suggests  expressions  un- 
derstood and  adopted  by  testator,  the  will  is  valid.^*^ 

92  La.  Code  1808,  p.  288,  art.  92;  Ann.    1376;    Saiix's    Succession,    46 

Civ.      Code-La.      1571:     Monroe    v.  La.   Ann.   142.3. 

Liebman,  47  La.  Ann.  1.55.  »6  Landry     v.     Tomatis,     32     La. 

03  Monroe    v.     Liebman,     47     La.  Ann.    113.      So   if   the  notary  ques- 

Ann.  155.  tions    testator    to    discover    his    ex- 

94  Cauvien's  Succession,  46  La.  act  meaning.  Saux's  Succession, 
Ann.    1412.  46  La.  Ann.  1423. 

95  Ilennessv     v.     Woulfe,     49     La. 


LAW    OF    WILLS.  269 

The  addition  by  the  notary  of  an  omitted  word  on  the  margin 
of  the  will  does  not  invalidate  the  will,  where  such  word  may  be 
rejected  and  the  will  is  clear  without  it.^^  The  will  must  then 
be  signed  by  testator  if  he  can  write.  If  he  can  not,  the  notary 
certifies  such  fact,  and  signature  or  mark  by  testator  is  then  un- 
necessary.^^ The  will  must  be  signed  by  the  witnesses,  or  at 
least  one  for  all,  if  the  others  can  not.  Express  mention  must 
be  made  in  the  will  by  the  notary  of  the  performance  of  these 
necessary  acts.^^ 

The  notary's  certificate  must  show  the  presence  of  witnesses 
when  the  will  was  dictated  ;^*^'^  and  that  it  was  written  down  by 
the  notary  from  dictation  ;^^^  and  the  reading  of  the  will  in  the 
presence  of  witnesses  ;^^^  and  the  facts  that  constitute  com- 
petency of  the  witnesses.^ "^  But  it  does  not  have  to  show  af- 
firmatively that  the  witnesses  were  not  disqualified,  as  being 
women,   children  under  sixteen,   insane   and  the   like.^^^ 

All  this  must  be  done  at  one  time,  and  without  turning  aside 
to  any  other  act ;  but  this  fact  does  not  have  to  be  certified  in  the 
will,  but  its  absence  is  a  matter  to  allege  and  prove  in  order  to 
set  the  will  aside. ^^^ 

Where  the  notary  interrupted  the  execution  of  the  will  to 
insist  that  the  mtnesses  should  remain  in  the  room  till  the 
will  was  executed,  this  was  held  not  to  be  a  turning  aside  to 
another  act.^^*'  The  fact  of  signature  of  the  will  need  not  be 
stated  in  the  certificate.^ '^''^ 


97  Diipuy  V.  Esnard,  51  La.  Ann.  Ann.  593  (not  simply  hia  opinion 
797.  and  legal  conclusion  that  they  were 

98  Hennessy    v.    Woulfe,     49     La.  'competent' ) . 

Ann.  1376.  io4  Marquez's    Succession,    50   La. 

99  Civ.  Code.  1578;  Dalton  v.  Ann.  66;  Del  Escobal's  Succession, 
Wickliffe,  35  La.  Ann.  355;  Dor-  42  La.  Ann.  1086;  9  L.  R.  A.  829. 
ries's  Succession,  37   La.  Ann.  833.  los  Featherstone    v.    Robinson,    7 

100  Connor  v.  Brashear,  25  La.  La.  596 ;  Keller  v.  McCalop,  12  Rob. 
Ann.  663;  Wilkin's  Succession,  21  638;  Saux's  Succession,  46  La. 
La.   Ann.   115.  Ann.   142,'}. 

101  Miller  v.  Shumaker,  42  La.  iog  Depuy  v.  Esnard,  51  La.  Ann. 
Ann.   398.  797. 

102  Wilkin's  Succession,  50  La.  107  Saux's  Succession,  46  La. 
Ann.  115.  Ann.   1423. 

103  Voilmer's    Succession,    40    La. 


270  LAW     OF     WILLS. 

§242.     Nuncupative  testaments  by  private  act. 

A  nuncupative  will  by  private  act  is  one  written  either  by 
testator  or  by  some  one  else  at  his  dictation  in  the  presence 
of  five  witnesses  residing  in  the  place  where  the  will  is  made, 
or  of  seven  residing  elsewhere ;  or  by  testator's  presenting  to  the 
above  number  of  witnesses  his  will  written  out  of  their  pres- 
ence and  declaring  it  to  be  his  last  will.^^*  This  will  must 
then  be  read  to  the  witnesses  by  testator  or  by  one  of  the  wit- 
nesses ;  and  must  be  sigTied  by  testator  if  he  can  write ;  and  by 
the  witnesses,  if  they  can  write.  At  least  two  of  them  must 
write  their  names  and  the  others  must  sign  by  mark.^^^  The 
amanuensis  may  act  as  one  of  the  witnesses.-' ^^ 

The  declaration  that  it  is  testator's  will  may  be  made  in- 
formally. Thus,  where  the  amanuensis  reads  the  paper  and 
then  says  to  testator :  "Is  this  paper  that  has  just  been  read  your 
will  ?"  and  the  testator  rays :  "It  is,"  this  is  a  good  declaration 
by  him  that  it  is  his  will.^^^ 

Publication  is  all  that  is  necessary  where  the  will  is  written 
out  of  the  presence  of  the  witnesses.  It  need  not  be  shown 
whether  testator  wrote  it  or  dictated  it.^^^ 

A  witness  who  can  not  understand  the  language  in  which  the 
will  is  written,  and  is  read,  is  not  a  competent  witness  to  such  a 
will ;  and  the  fact  that  the  will  was  translated  to  him  by  an  in- 
terpreter does  not  render  him  competent.  ^^"^ 

PART  IV— MYSTIC  TESTAMENTS. 


§243.     Mystic  testaments. 

A  mystic  will  is  one  which  is  sigTied  by  testator,  whether 
written  by  himself  or  another,  which  is  then  placed  in  a  paper 

108  Civil  Code,  Sec.  1574.  112  Pfarr  v.  Belmont,  39  La.  Ann. 

109  Civil  Code,  Sec.  1576.  294. 

110  Wood   V.   Roane    35   La.   Ann.  ii3  Dauterive's  Succession,  39  La. 
865.  Ann.    1092. 

111  Bourke  v.  Wilson,  38  La.  Ann. 
320. 


LAW    OF    WILLS. 


271 


or  envelope     This  paper  or  envelope  is  then  closed  and  sealed ; 
and     si ;  closed"d  sealed  is  presented  to  the  notary  and 
o  sev  n  witnesses,  unless  the  act  of  enclosing  and  sealmg  was 
do^     in  their  presence.     Testator  then  declares  to  the  nota^ 
in  the  presence  of  the  witnesses    that  the  paper  contains  Ins 
estament,  written  by  himself  or  by  another  at  his  direction 
and  si  W  by  him,  the  testator.     The  notary  must  then  dra.v 
up  tlie^  act  of  superscription  upon  the  paper  or  envelope  m 
which  the  testament  is  enclosed,  which  act  is  to  be  signed  by 
testator,  notary  and  the  witnesses.^^^ 

The  act  of  ;uperscription  must  recite  the  facts  necessary  irn^ 
der  the  statute  to  the  validity  of  the  mystic  ^^all.  Thus,  i±  it 
does  not  show  testator's  declaration  that  the  wi  1  was  signed  by 
him  and  written  by  him,  or  by  another  by  his  direction 
or  if  it  does  not  show  that  it  was  presented  to  the  notary 
or  closed  or  sealed  by  testator,^^^  the  will  is  invalid. 

While  the  will  must  be   "sealed"   the  use  of   a  wax  seal 
is  not  imperative.     The  sealing  may  be  done  with  wafers. 
So  the  use  of  an  ordinary  mucilaged  envelope   is  a  compliance 
with  the  statute.^  ^^ 


114  Civ.    Code     La.      Sec.    1584. 

iisBroutin  v.  Vassant,  2  Martin, 
432;  Lewis  v.  Lewis,  5  Louisiana 
Reports,   387. 

116  Stafford  v.  Villain,  10  Louis- 
iana Reports,  319. 

iiT  Hart  V.  Thompson,  15  Louis- 
iana Reports,  88.  (In  this  case 
the    witnesses    signed    their    names 


across  and  between  the  wafers,  so 
that  it  was  difficult  to  open  the  wiil 
unobservedly. ) 

118  Saint  V.  Charity  Hospital,  48 
La.  Ann.  236.  (In  this  case  the 
superscription  was  written  across 
the  flap  of  the  envelope  where  it 
adhered  to  the  paper.) 


272  LAW    OF    WILLS. 


CHAPTER  XIV. 

REVOCATION. 

§244.     Nature  of  revocation  and  history  of  doctrine  of  revoca- 
tion. 

As  we  have  seen  already^  revocabilitj  is  an  inherent  and 
essential  element  of  a  will,  without  which  the  instrument  in 
question  can  not  properly  he  classed  as  a  will. 

Revocation  is  avoiding,  and  invalidating  an  instrument, 
which  but  for  revocation  would  have  been  the  last  will  and  tes- 
tament of  the  party  by  whom  it  was  executed.  A  revoked  will 
is  of  no  legal  effect  whatever.  It  can  not  be  used  as  a  method 
of  transferring  testator's  property  to  the  beneficiaries  named 
therein,^  and  it  has  been  held  that  a  revoked  will  can  not  be 
used  as  a  written  declaration  of  a  trust.^  A  revoked  will  may, 
however,  be  used  as  evidence  of  a  contract  to  make  a  will,  if 
its  contents  show  such  contract."* 

The  Statute  of  Wills  contained  no  provisions  on  the  subject 
of  revocation.  The  courts  proceeded  to  build  up  a  set  of  rules 
partly  based  on  the  ecclesiastical  law,  and  partly  by  pure  ju- 
dicial legislation.  These  rules  had  for  their  general  founda- 
tion   the    theory    that    the    intention    of    the    testator  to  re- 

1  See  Sec.  50.  ^  Davis    v.    Stambaugh,    163    111. 

2  This    elementary    proposition    is  557. 
sustained    by    any    of    the    eases    of  *  See  Sec.  74. 
revocation   cited    in    the    following 

sections. 


LAW     OF     WILLS. 


273 


voke  should  be  given  effect  hj  tlie  courts,  and  that 
the  form  of  the  revocatory  act  was  immateriaL  It 
was  accordingly  held  that  the  declaration  of  testator 
that  he  regarded  his  will  as  revoked,  would  be  sufficient 
to  effect  a  revocation.^  Thus,  where  devisee  prevented  testator 
from  destroying  his  will  by  falsely  and  fraudulently  represent- 
ing it  to  be  destroyed,  it  was  held  that  testator's  intention 
and  declarations  operated  as  a  revocation.^  This  laxity  of 
judicial  view  had  its  natural  result  in  bold  attempts  to  defeat 
wills  by  fabricating  evidence  of  the  declarations  of  testator. 
The  history  of  one  of  the  most  glaring  of  these  conspiracies  is 
given  in  a  note  to  Mathews  v.  Warner,'^ 

This  particular  attempt  to  defeat  justice  met  with  disastrous 
failure;  but  the  wish  already  quoted  that  there  should  some  day 
be  "a  law  that  no  written  will  shall  be  revoked  but  by  a  writ- 
ing "  was  entertained  by  the  whole  English  bar ;  and  soon  found 
expression  in  the  Statute  of  Frauds.^     This  statute  has  been 


5  6  Cruise's  Dig.,  79  tit.  38,  c. 
6,  Sec.  2;  Burton  v.  Gowell,  Cro. 
Eliz,  pt.  1,  306;  Ash  v.  Abdy,  3 
Swanst.  664;  Matthews  v.  Warner, 
4  Ves.  Jr.  186,  note;  Card  v.  Grin- 
man  6  Conn.  164;  Prince  v.  Hazle- 
ton,  20  Johns.  502;  Clark  v.  Eborn, 
2  Murph.    (N.  C.)    234. 

"  Card  V.  Grinman,  5  Conn.   164, 

"•  Mathews  v.  Warner,  4  Ves.  Jr. 
180,  and  see  Sec.  232. 

S29  Car.  II,  c.  3,  Sec.  6  (wills)  ; 
Sec.  22  (testaments). 

See.  6.  And  moreover,  no  devise 
in  writing  of  lands,  tenements  or 
hereditaments,  nor  any  clause 
thereof,  shall  at  any  time  after  the 
said  four  and  twentieth  day  of  June 
be  revocable,  otherwise  than  by 
some  other  will  or  codicil  in  writ- 
ing, or  other  writing  declaring  the 
same,  or  by  burning,  cancelling, 
tearing  or  obliterating  the  same  by 
the  testator  himself,  or  in  his  pres- 
ence and  by  his  directions  and  con- 
sent;   but   all   devises   and   bequests 


of  lands  and  tenements  shall  remain 
and  continue  in  force,  until  the 
same  be  burnt,  cancelled,  torn  or 
obliterated  by  the  testator  or  his 
directions,  in  manner  aforesaid,  or 
unless  the  same  be  altered  by  some 
other  will  or  codicil  in  writing,  or 
other  writing,  of  the  devisor,  signed 
in  the  presence  of  three  or  four 
witnesses,  declaring  the  same;  any 
former  law  or  usage  to  the  con- 
trary  notwithstanding. 

Sec.  22.  And  be  it  further  en- 
acted. That  no  will  in  writing  con- 
cerning any  goods  or  chattels,  or 
personal  estate,  shall  be  repealed, 
nor  shall  any  clause,  devise  or  be- 
quest therein  be  altered  or  changed 
by  any  words,  or  by  will,  by  word 
of  mouth  only,  except  the  same  be 
in  the  life  of  the  testator  committed 
to  writing,  and  after  the  writing 
thereof  read  unto  the  testator,  and 
allowed  by  him  and  proved  to  be 
done  by  three  witnesses  at  the 
least. 


274  LAW    OF    WILLS. 

copied  with  variations  in  every  American  state.  While  different 
in  detail,  these  statutes  agree  in  this:  that  apart  from  the 
methods  of  revoking  a  written  Avill  laid  down  by  the  statutes, 
no  revocation  is  possible.  Accordingly,  the  mere  wishes  and 
declarations  of  testator  can  never  effect  a  revocation,'^  no  matter 
how  clear  may  be  testator's  intention  to  revoke  his  will.^°  So 
where  a  testator  declared  his  intention  to  execute  certain  convey- 
ances of  his  real  estate,  and  then  revoke  his  will,  but  he  never 
in  fact  did  so,  his  will  was  held  not  to  be  revoked  by  such  state- 
ments of  his  intention.^  1  But  a  verbal  agi-eement  made  between 
testator  and  a  beneficiary  under  his  will  that  in  consideration 
of  a  provision  in  the  will  for  such  beneficiary  the  latter  would 
pay  a  certain  sum  to  a  third  person,  is  a  valid  contract  enforce- 
able at  law,  and  not  an  attempt  to  revoke  the  will  by  parol 
evidence.^  ^ 

These  statutes,  however,  prescribe  formalities  only  for  revoca- 
tion by  act  manifest  on  the  will.  They  do  not  affect  the  other 
classes  of  revocations,  as  by  later  instrument,  by  alteration  of 
testator's  estate,  and  by  change  of  circumstances.^^ 

§245.     Classes  of  revocation. 

At  modern  law  the  methods  of  revocation  may  be  grouped 
under  four  general  classes.     The  first  two  of  these  classes  re- 

9  Atkinson  v.  Morris,  (1897),  P.  Boylan  ads.  Meeker,  4  Dutch.  274; 
40;  Slaugliter  v.  Slaugliter,  81  Ala.  Sliaw  v.  Shaw,  1  Dem.  21;  Coe  v. 
418 ;  Barnewell  v.  Murrell,  108  Ala.  Kniffen,  2  Johns.  31 ;  Dan  v.  Brown, 
366;  Taylor  v.  Cox,  153  111.  220;  4  Cow.  483;  McCune  v.  House,  8 
Kent  V.  Maliaflfey,  10  0.  S.  204,  Ohio  144;  Boudinot  v.  Bradford,  2 
and  see  Sec.  255.  Dall.  (Pa.)  266 ;  2  Yeates  (Pa.)   170; 

10  Taylor  v.  Pegram,  151  111.  106;  Clark  v.  Morrison,  25  Pa.  St.  453; 
Belshaw  V.  Chitwood,  141  Ind.  377 ;  Kirkpatrick's  Will,  96  Tenn.  85; 
Woodfill  V.  Patton,  76  Ind.  575;  Greer  v.  McC-ackin  Peck  (7  Tenn.) 
Forbing  v.  Weber,  99  Ind.  588;  301;  Allen  v.  Huff,  1  Yerg.  (9 
Sneed  v.  Ewing,  5  J.  J.  Marsh.  Tenn.^  404;  Marr  v.  Marr,  2  Head 
(Ky.)  459;  Herbert  v.  Long,  15  (Tenn.)  303;  Allen  v.  Jeter,  6  Lea 
Ky.  Law  Rep.  427;  23  S.  W.   (Ky.)  (Tenn.)    672. 

658;     Collagan    v.    Burns,    57     Me.  nBelshaw  v.   Chitwood,   141   Ind. 

449 ;  Succession  of  Hill,  47  La.  Ann.  377. 

329;   Byers  v.  Hoppe,  61   Md.  206;  i2Lawrence    v.    Oglesby,    178    111. 

Sewell    V.    Slingluff,    57    Md.    537;  122. 

Brewer    v.    Barrett,    58    Md.    587 ;  is  See  Sec.  262  et  seq. 


276 

LAW     OF     WILLS. 

voke  the  will  by  reason  of  the  actual  intention  of  the  testator 
to  do  so,  accompanied  by  the  required  legal  formalities,     ihey 


are 


'11 

(1)  The  doing  of  some  specified  act  manifest  on  the  will, 
with  the  intention  of  revoking  the  sajne. 

(2)  Revocation  of  a  will  by  a  later  will,  codicil  or  other  m- 

strument.  i    j?  ^i 

The  two  remaining  classes  revoke  the  will  m  disregard  of  the 
actual  intention  of  the  testator,  and  sometimes  m  defiance  ol 
it.  Tbey  are  often  spoken  of  as  revocation  by  operation  oi 
law.     They  consist  of : 

(3)  Certain  specified  changes  in  the  domestic  relations  ot 

testator,  and 

(4)  Alterations  in  the  estate  of  testator. 

§246.     Revocation  by  means  of  acts  manifest  on  the  face  of  the 

will. 

The  acts,  manifest  on  the  face  of  the  will,  which  may  re- 
voke the  will,  may,  under  modern  statutes,  be  one  or  more  of 
the  following:  burning  ,tearing,  cancelling,  obliterating  or  de- 
stroying     Not  all  of  these  are  included  in  every  statute,  can- 
celling bein,-  the  one  most  frequently  omitted.     As  the  statutes 
generally  provide  that  a  will  shall  not  be  revoked  in  any  method 
except  as  therein  provided,  the  omission  from  the  statute  of  any 
one  of  these  methods    generally  makes  it  impossible  to  revoke 
a  will  bv  such  omitted  methofl.     However,  as  will  appear  from 
a  discussion  of  the  meanings  of  the  separate  terms,  the  courts 
do  not  distinguish  sharply  between  these  methods,  and  often 
class  under  one  heading  facts  which  might  seem  appropriately 
to  belong  under  another. 

§247.     Act  manifest  on  instrument. — Burning. 

The  act  of  burning  must  at  least  consist  in  burning  a  por- 
tion of  the  paper  upon  which  the  mil  is  written,  so  that  such 
burning  is  visible.  It  is  not  necessary  that  any  part  of  the 
writing  be  burned  or  rendered  .illegible,  but  the  mark  of  fire 
must  appear  upon  the  paper  itself.^ ^ 

i4Bibb  V.  Thomas,  2  W.  Bl.  quoted  ease  the  testator  crnmple^ 
1043.     In  this  celebrated  and  most       the  ^^^ll  up  so  as  to  tear  it  slight- 


276 


LAW    OF    WILLS. 


Where  the  envelope  in  which  the  instrument  is  contained  is 
burnt,  but  the  will  itself  is  untouched,  this  is  not  burning  the 
will  in  compliance  with  the  statute.^  ^  And  where  the  will  is 
not  touched  bv  fire,  but  another  paper  is  burned  by  mistake, 
this  is  not  a  burning  within  the  meaning  of  the  statute.  This 
is  true  even  where  the  mistake  of  testator  was  caused  bj  the 
fraud  and  deceit  of  other  persons  who  represented  to  him  that 
the  palmer  burned  was  his  will.^^ 

§248.     Tearing. 

Tearing  the  paper  or  parchment  on  which  the  will  is  written 
with  intention  of  revoking  the  will,  is,  by  the  terms  of  these 
statutes,  a  revocation.  As  has  been  often  said,  tearing  in  the 
Wills  Act  includes  cutting.^  ^  Any  act  of  tearing  which  is 
manifest  upon  the  paper  on  which  the  will  is  written,  how- 
ever slight  it  may  be,  is  an  act  of  tearing  within  the  meaning 
of  the  statute,  if  done  with  the  intention  of  revoking  the 
will.^^  This  is  equally  true  whether  a  necessary  part  of  the 
will  is  torn  off,  like  the  signature  of  testator  or  of  witnesses,^  ^ 


ly  and  tlirew  it  on  the  fire  where 
it  was  scorched.  It  was  surrep- 
titiously removed  without  his 
knowledge  before  it  burned.  It  was 
held  that  this  amounted  to  a  revo- 
cation. 

Another  case  in  point  is  White 
V.  Casten,  1  Jones's  Law  (X.  Car.) 
197. 

15  Doe  d.  Read  v.  Harris,  6  Ad. 
&  El.  209 ;  33  E.  C.  L.  57  :  8  Ad.  & 
El.  1;  35  E.  C.  L.  290;  1  N.  &  P. 
405;  W.  W.  &  D.  106;  6  L.  J.  K. 
B.  84. 

16  Graham  V.  Burch,  47  Minn. 
171;  Mundy  v.  Mundy,  15  N.  J. 
Eq.  290;  Kent  v.  Maffey,  10  O.  S. 
204;  Clingan  v.  Micheltree,  31  Pa. 
St.  25;  Hise  v.  Fincher,  10  Ired.  (N. 
C.)    139. 

Contra,  Pryor  v.  Coggin,  17  Ga. 
444;  Smiley  v.  Gambill,  2  Head 
(Tenn.)    164. 

17  Goods     of     Harris,-   3     Sw.    & 


Tr.  485;  10  Jur.  (X.  S.)  684; 
Hobbs  V.  Knight,  1  Curt.  768; 
Clarke  v.  Scripps  2  Rob.  563; 
Goods  of  Marshall,  l7  W.  R.  687  ; 
Maynes  v.  Hazleton,  44  L.  T.  586; 
45  J.  P.  816;  Brown's  Will,  1  B. 
Mon.  (Ky.)  56;  Smock  v.  Smock,  3 
Stock.    (N.  J.)    156. 

18  Bibb  V.  Thomas,  2  W.  Bl. 
1043;  Sanders  v.  Babbitt,  Ky. 
(1899)  51  S.  W.  163;  Evan's  Ap- 
peal,  58    Pa.    St.   238. 

19  Maynes  v.  Hazleton,  44  L.  T. 
586;  45  J.  P.  816;  Goods  of  Mar- 
shall, 17  W.  R.  687;  Goods  of 
-Le\vis,  1  Sw.  &  Tr.  31;  27  L.  J. 
P.  31;  4  Jur.  IST.  S.  243;  Youse  v. 
Foreman,  5  Bush  (Ky.)  337; 
Sanders  v.  Babbitt.  Ky.  1899;  51 
S.  W.  163;  21  Ky.  L.  R.  240; 
White's  Will,  25  N.  .J.  Eq.  501; 
Smock  V.  Smock,  3  Stock.  (N.  J.) 
156;  Jones's  Estate,  2  Ohio  N.  P. 
209. 


LAW    OF    WILLS. 


277 


or  a  part  of  the  dispositive  part  of  the  will,  leaving  the  res  - 
due  •-  or  whether  tears  are  made  in  the  paper  on  which  the  will 
t  written  withont  taking  away  any  of  the  words -or  whether 
an  unnecessary  part  of  the  will  is  torn  away,  such  as  a  seal 
tlere  a  will  need  not  be  under  seal,-  or  unnecessary  signatures 
from  separate  sheets.^'  Where  testator  has  scratched  ou  an 
Lntiafpart  of  the  will  by  means  of  a  hnife,  this  has  been 

held  to  be  a  revocation  on  the  theory  that  it  is  a      lateral 

cutting."^* 

§249.     Cancelling. 

Cancelling  originally  meant  drawing  crossed  lines  upon  the 
paper!  so  as°to  deface  the  writing  thereon.-  The  court,  have 
held  that  this  original  meaning  is  too  narrow  for  the  sense  of 
the  statute.=^«  Under  the  view  of  modern  law  a  will  may  be 
cancelled  by   drawing   an   ink   line   through   sufficient   words 


20  Brown's  Will,  1  B.  .  Mon. 
(Ky.)  56;  Varnon  v.  Varnon,  67 
Mo.   App.   534. 

21  Goods  of  White,  3  L.  R.  Ir. 
413;    Evan's  Will,   58   Pa.   St.  238. 

22  Price  V.  Price,  3  H.  &  N.  341 ; 
6  W.  R.  597;  Avery  v.  Pixley,  4 
Mass.  460;  White's  Will,  10  C.  E. 
Gr.  (N.  J.)  501;  Johnson  v.  Brails- 
ford,  2  Nott  &  McC.  (S.  Car.)  272. 

23  Williams  v.  Tyley,  Johns. 
530;  5  Jur.  (N.  S.)  35;  7  W.  R. 
116;  Goods  of  Harris,  3  Sw.  &  Tr. 
485;    10  Jur.  N.   S.   684. 

24  Goods  of  Morton,  12  P.  D. 
141;   56  L.  J.  P.  96;   51  J.  P.  580. 

25  Warner     v.     Warner,     37     Vt. 

356. 

26  "The  statute  does  not  declare 
what  shall  amount  to  cancella- 
tion. The  word  is  not  a  technical 
one  and  therefore  the  legislature 
must  be  presumed  to  have  used  it 
in  its  ordinary  and  commonly  un-. 
derstood  sense.  It  amounts  to 
nothing  to  show  what  the  original 
etymological   meaning   of   the   word 


'cancel'     was.       Long     before     the 
statute     was     passed     it     had     ac- 
quired   an    accommodated    meaning 
plain    to    the    common    understand- 
ing. .  .  Revocation      by      ca-ncella- 
tion   is   not   then   to   be  understood 
to       mean       exclusively       drawing 
crossed   lines   upon   the   paper,   but 
it  means  any  act  done  to  it  which 
in    common    understanding    is    re- 
garded   as    cancellation    when    done 
to   any   other   instrument."     Evan's 
Appeal,   58    Pa.    St.   238. 

"In  its  primal  significance  the 
word  means  a  lattice  work.  As  ap- 
plied to  writings  it  means  the  nul- 
lification of  a  writing  by  drawing 
upon  its  face  lines  in  the  form  of 
lattice-work,  "criss-cross."  Usually, 
in  legal  as  well  as  in  common  ac- 
ceptance, cancellation  is  accom- 
plished by  the  drawing  of  any 
lines  over  or  across  words  with 
the  intent  to  nullify  them.  It  is 
common  business  practice  to  can- 
cel     negotiable      instruments      and 


278 


LAW     OF     WJLLS, 


thereof  with  intent  to  revoke,-"^  or  by  drawing  lead  pencil 
lines.^^  In  England  drawing  a  lead  pencil  line  through  a  will 
written  in  ink  has  always  been  held  to  be  prima  facie  a  delib- 
erative act,  and  not  a  finality,  and  hence  not  a  revocation.-'' 
In  some  English  cases,  where  the  signature  of  a  witness  was 
cancelled,  a  fac-simile  probate  was  ordered.^° 

Erasure  of  the  words  of  a  will,  when  done  with  intent  to  re- 
voke, may  constitute  a  cancellation  f^  and  tearing  off  an  unnec- 
essary seal,  with  part  of  testator's  signature,  and  erasing  the 
r^t  of  testator's  name  and  the  names  of  the  witnesses,  has  been 
called  a  ''cancellation. "•"- 

r  In  a  recent  California  case^^  testator,  made  a  will,  in  1893, 
which  he  enclosed  in  an  envelope.  On  his  death  there  was 
found  written  on  this  envelope,  in  the  handwriting  of  testator : 
"  July  4. — ]\rake  over ;"  on  the  other  side  of  the  envelope  was, 
"  This  has  not  been  renewed  up  to  this  15th  day  of  October, 
1895.  Neglected  it,  thinking  I  would  sell  something."  Testa- 
tor's seven  sig-natures  on  margin  of  .each  page  and  at  foot  of 
will  were  cancelled  by  two  ink  lines  drawTi  through  the 
length  of  each.      On  the  last  page,   under  signature  of  wat- 


otlier  written  contracts  by  draw- 
ing such  lines  through  the  signa- 
tures of  the  makers.  Such  was  the 
method  adopted  in  this  case.  It  is  a 
well  recognized  method,  as  has  been 
said,  and  one  clearly  within  the 
letter  and  spirit  of  the  statute." 
Olmstead's   Estate,    122   Cal.   224. 

27  Goods  of  Harris,  3  Sw.  & 
Tr.  485;  10  Jur.  (N.  S.)  684;  In 
re  Godfrey,  (1893),  1  Rep.  484; 
69  Law.  T.  22;  Olmstead's  Estate, 
122  Cal.  224:  Glass's  Estate, 
(Colo.  App.  1900),  60  Pac.  186; 
Succession  of  Batchelor,  48  La. 
Ann.  278  V  Miih's  Succe^ssion,  35 
La.  Ann.  394;  Danimann  v.  Dani- 
mann-  (Md.),  28  Atl.  408;  Bige- 
low  V.  Gillott,  123  Mass.  102; 
Baptist  Church  v.  Robbarts,  2  Pa. 
St.  110;  Evan's  Appeal,  58  Pa.  St. 
238;  Kirkpatrick's  Will,  7  C.  E. 
Gr.   463. 


28  Townshend  v.  Howard,  86 
Me.  285;  Tomlinson's  Appeal,  133 
Pa.   St.   245. 

29  Francis  v.  Grover,  5  Hare 
39;    15  L.  J.   Ch.   99;    10  Jur.   280. 

30  Goods  of  Smith,  3  Sw.  &  Tr. 
589;  10  Jur.  (N.  S.)  1243; 
34  L.  J.  P.  19;  Goods  of  Raine,  34 
L.  J.  P.  125;   11  Jur.    (N.  S.)    587. 

31  Goods  of  Morton,  12  Prob. 
Div.  141;  56  L.  J.  P.  96;  51  J.  P. 
580;   Miles's  Appeal,  68  Conn.  237. 

32  White's  Will,  25  N.  J.  Eq. 
501,  citing  Avery  v.  Pixley,  4 
Mass.  460;  Hobbs  v.  Knight,  1 
Curteis  768;  Goods  of  James,  7 
Jur.  N.  S.  52;  Price  v.  Powell,  3 
H.  &  N.  341;  Smock  v.  Smock,  3 
Stockt.  156. 

33  Olmstead's  Estate,  122  Cal. 
224. 


279 

LAW     OF    WILLS. 


nesses,  was  written  by  testator:  "Owing  to  the  depreciation  in 
my  property  I  will  make  a  new  will." 

Some  of  the  clauses  were  cancelled  by  ink  bnes  dra™ 
the  Ml  length  of  every  line,  and  by  cross  lines  extending 
from  t«p  to  bottom.  Several  changes  were  made  m  amonnt  of 
e^acies  Testator  had  often,  and  within  fifteen  days  of  h 
dt;,  declared  that  he  had  made  an  iron-clad  w.l  that  conUl 
not  be  broken.  The  Probate  Court  found  as  a  fact  that  he  in- 
tended to  cancel  his  will,  and  on  this  record  the  Supreme  Court 

affirmed  decision.  , 

Drawing  an  ink  line  through  an  indorsement,  "last  will  and 
testament "  upon  the  envelope  in  which  the  will  was  contained^ 
and  writing  "superseded  by  a  later  will,"  does  not  of  itself 
constitute  a  cancellation  of  tlie  will;"  nor  does  a  change  of 

the  date  of  the  will.''  ,  .  ,    ,,        „,j 

In  some  cases  wills  have  been  presented  on  which  the  word 
"cancelled"  was  written  by  testator  with  the  intention  of  re- 
voking it,  and  the  question  is  presented  if  this  is  a  cancellation 
withi^  the  meaning  of  the  statute.  The  decisions  are  reconcil- 
able, though  not  reconciled  by  the  courts.  Where  the  word  is 
written  across  the  writing  on  the  face  of  the  will  it  is  held  to 
amonnt  to  a  cancellation.  "A  repeal  is  effected  by  the  act  of 
writing  upon  the  will  itself  a  word  that  manifests  an  intention  lo 

annul  it."'"  ^  ^. 

In  an  earlier  Pennsylvania  case"  the  testator  wrote  tvpon  he 
margin  of  the  will,  so  as  not  to  cover  any  of  the  writing,  the 

^       n  „       rorthwaite      2  So  in  Goods  of  Harris,  3  Sw.  & 

3*Grantley      v.      Garthwarte,  ^r.  485;  10  Jur.  (N.  S.)  684,  a  will 

Kuss.    90.  „     T  i*     SpI        was  found  with  the  signatures  cut 

3.Averal     v     AveraU,    L,t.    Sel.      was^^^^_^  ^^^   ^^^^  ^^^   ^^_^^^_  ^,^^ 

'''^Evan:  Estate,  58  Pa.  St.  «-'  ^'^"f '^  ^ "'  U  ^1:1^' 
.38,  Citing  ana  toUowing  Warner  ^J^- ^j  "H'"^:  rsTLt'- 
V.  Warner,  37  Vt.  356;  so  Mrkpat-         Canoe,  ed,  A^  ,__^^^  ^^_^^  ^^^^ 

the   word   'cancelled'   as   a  cancella- 
tion. 


280  LAW     OF     WILLS. 

word  "obsolete."  This  was  held  not  to  revoke  the  will.  This 
case  was  distinguished  in  Evans'  estate,  supra,  upon  two 
grounds :  first,  that  the  word  "obsolete"  did  not  necessarily  im- 
port a  revocation,  while  the  word  "cancelled"  did;  second, 
that  in  the  early  case  the  word  did  not  cover  any  of  the  writ- 
ing of  the  will,  thus  appearing  as  a  memorandum  on  the  mar- 
gin, while  in  the  later  case  it  covered  the  writing,  and  appeared 
more  as  an  intended  cancellation. 

In  a  later  Wisconsin  case^^  testatrix  wrote  on  the  back  of 
the  fourth  page  of  her  will:  "I  revoke  this  will."  This  was 
signed  by  testatrix,  but  not  witnessed.  The  entire  will  was  writ- 
ten on  the  first  page,  so  that  the  sheet  of  which  the  third  and 
fourth  pages  consisted  formed  a  cover  to  the  will.  It  was  held 
that  these  words  did  not  constitute  a  cancellation,  and  the  court,, 
while  liolding  that,  while  on  the  facts  it  might  be  distinguished 
from  Warner  v.  Warner  and  Evans'  Estate,  and  be  classed  with 
Lewis  V.  Lewis,  preferred  to  decide  upon  the  theory  that  the 
former  cases  named  were  incorrectly  decided. 

In  some  jurisdictions  the  statute  on  the  subject  of  "Revoca- 
tion" omits  the  word  "cancellation."  In  such  jurisdiction?;, 
drawing  lines  through  words  do  not  effect  a  revocation ;  not  be- 
cause it  is  not  a  cancellation,  but  because  cancellation  alone 
does  not  revoke  under  these  statutes.^^  The  effect  of  the  par- 
tial destruction  of  a  will  which  is  sometimes  spoken  of  as  can- 
cellation is  discussed  under  "Partial  Revocation."  "^^ 

§250.     Mutilation. 

Where  the  statute  provides  that  if  a  will  is  "mutilated" 
with  intent  to  revoke  it,  such  will  is  revoked ;  drawing  pencil 
lines  across  the  signature,  so  as  to  deface,  but  still  leaving  the 
signature  legible,  was  held  to  constitute  a  "mutilation. "^^ 

88  Ladd's  Will,  60  Wis.  187.  Lovell   v.   Quitman,   88   N.   Y.    377; 

39 /»  re  Godfrey    (1893),   1   Rep.  Law  v.  Law,  83  Ala.  432. 

484 ;  69  L.  T.  22  ;  Bethell  v.  Moore,  4o  See    Sec.    254. 

2   Dev.  &  B.   311:    Ladd's   Will,   60  « Woodfill     v.     Patton,     7G     Ini 

Wis.   187;   Gay  v.  Gay,  60  lo.  415;  575. 
Grace  v.  Association,  87   Wis.  562; 


LAW     OF     WILLS. 


281 


j251.     Obliterating. 


Under  some  statutes  obliteratiiig  a  will,  with  the  intention  of 
revoking,  will  operate  as  a  revocation.  But  elsewhere,  by  stat- 
ute, obliteration  has  been  withdrawn  from  the  methods  of  re- 
voking a  M'ill,  and  the  will  as  originally  executed  must  be  ad- 
mitted to  probate,  if  it  is  possible  to  distinguish  the  original 
words,  unless  it  was  re-executed  or  re-published  subsequently  to 
the  alteration.'*^ 

Where  such  provisions  are  contained  in  the  statute  it  is  held 
that  if  an  expert  can,  with  the  help  of  a  microscope,  decipher 
the  writing,  as  it  stood  before  alteration,  such  writng  as  it  stood 
is  "apparent"  within  the  meaning  of  the  statute  and  must  be 
regarded  as  part  of  the  will.'*"*  But  where  the  writing  of  a 
material  part  of  the  will  is  so  obliterated  as  to  be  illegible, 
it  may  be  regarded  as  a  "destruction,"  and  hence  a  revocation.'*^ 

§252.     Destruction. 

The  destruction  of  a  will  by  testator,  with  intent  of  revoking 
it,  operates  as  a  revocation  under  all  the  codes,  and  needs  no 
further  discussion  where  the  destruction  is  actual  and  total. 
The  doctrine  of  constructive  destruction,  however,  is  one  of  con- 
siderable importance,  especially  in  jurisdictions  where  the  stat- 
ute on  the  subject  of  revocation  omits  the  methods  of  cancel- 
lation, obliteration  and  the  like,  referred  to  in  this  chapter. 
In  some  jurisdictions  it  is  held  that  the  word  "destroy"  includes 
burning,  tearing,  cancelling  and  the  like.  "A  will  burnt,  can- 
celled,   or   torn,   animo   revocandi,   is    destroyed,"^^    and,    con- 

43  Ffinch  V.  Combe  (1894),  P.  lined  and  crossed  out  a  considerable 
191 ;  Goods  of  Godfrey,  69  L.  T.  22 ;  part  of  the  will  and  wrote  upon  the 
Pringle  v.  McPherson,  2  De  S.  (S.  will  "I  think  my  will  at  this  time 
Car. )    524.  unequal ;    with    God's    permission    I 

44  Brasier's  Estate  (1899),  P  36;  mean  to  alter  it,"  etc.  This  was 
68  L.  J.  P.  D.  &  A. ,  N.  S.  6.  held  to  amount  to  a  "destruction." 

45  Goods  of  Morton,  56  L.  J.  P.  But  while  this  is  true,  where  the 
96;  51  J.  P.  680:  Goods  of  James,  burning  and  the  like  aflfect  substan- 
7  Jur.    (N.  S. )    52.  tially  the  whole  will,  it  is,  as  a  gen- 

46  Johnson  v.  Brailsford,  2  Nott  eral  statement,  somewhat  more  ex- 
&  McC.  (S.  Car.)  272.  In  this  case  treme  than  is  warranted  by  the  ad- 
the  testator  tore  off  the  seals,  inter-  judicated    cases. 


282  LAW    OF    WILLS. 

versely,  the  words  "burning,  tearing,  cancelling,  or  obliterat- 
ing" in  the  statute  were  held  to  be  included  and  summed  up  in 
the  word  "destroyed,""*'^  Tearing  a  will  "into  fragments  is  un- 
questionably destruction,"  eyen  though  the  fragments  are  not 
destroyed.^*  So  apparently  is  tearing  or  burning  an  essential 
part  of  the  will,  such  as  testator's  signature.*^  So  is  such  cancel- 
lation or  obliteration  of  an  essential  part  of  the  will  as  makes 
it  impossible  to  decij)her  the  original  writing,  or  "entirely  ob- 
literates" it.^*^ 

But  anything  short  of  this,  such  as  a  cancellation 
or  partial  erasure,  which  leayes  the  original  writing  legi- 
ble, is  not  a  destruction  within  the  meaning  of  the  statute.^^ 
Thus,  drawing  a  pen  through  part  of  the  will,  writing  upon  it, 
"This  is  revoked,"  and  throwing  it  away,  was  held  not  to 
amount  to  "otherwise  destroying"  it  within  the  statute.^^ 
Still  less  does  an  intention  to  destroy  not  manifest  by  any  act 
upon  the  will,  but  by  some  extrinsic  act,  such  as  throwing 
the  will  among  waste  j^apers  and  intending  to  destroy  it  after- 
wards, amount  to  a  destruction.^^  The  destruction  of  a  docu- 
ment which  was  by  reference  incorporated  in  the  will  does  not 
operate  as  a  reyocation  of  the  will.^^ 

§253.     Destruction  of  duplicate  will. 

Where  a  will  has  been  executed  in  duplicate,  the  destruction 
by  testator  of  that  copy  which  he  retains  in  his  possession, 
with  intent  to  revoke  the  will,  operates  as  a  reyocation.  * 

47  Barksdale  v.  Davis,  114  Ala.  GG :  2  Prob.  Div.  251;  25  W.  R- 
623;   22   So.   17.  853;  Law  v.  Law,  83  Ala.  432;  Gay 

48  Evan's  Appeal,  58  Pa.  St.  244.  v.  Gay,  GO  lo.  415;  Lovell  v.  Quit- 

49  Goods  of  Gullon,   1    Sw.  &  Tr.  man,  88  N.  Y.  377. 

31 ;  4  Jur.  (N.  S.)  243;  Gay  v.  Gay,  52  Cheese  v.  Lovejoy,  46  L.  J.  P. 

60  lo.  415.  66;  2  P.  D.  251;   25  W.  R.  853. 

50  Goods  of  Morton,  56  L.  J.  P.  ss  Cheese  v.  Lovejoy,  46  L.  J..  P. 
96;  51  J.  P.  680;  Goods  of  James,  66;  2  Prob.  Div.  251;  25  W.  R.  853; 
7  Jur.  (N.  S.)  52,  obiter;  Gay  v.  Blakemore's  Succession,  43  La.  Ann. 
Gay,  60  To.  415,  citing  Hob-  845;  Succession  of  Hill,  47  La. 
bes  V.  Knight,  1  Curt.  779;  Ann.  329;  Hoit  v.  Hoit,  63  N.  H. 
Price  V.  Powell,  3  H.  &  N.  341 ;  In  475 ;  Fellows  v.  Allen,  60  N.  H.  439. 
re  Harris,  3  S.  &  T.  485;  Goods  of  54 /„  re  Coyte,  56  L.  T.  510. 
Gullan,  1  S.  &  T.  23 ;  Goods  of  Cole-  *  Paige  v.  Brooks.  75  Law  T. 
man,  2  S.  &  T.  314.  Rep.   455. 

51  Cheese  v.  Lovejoy,  46  L.  J.  P. 


LAW     OF     WILLS. 


288 


§254.     Partial  revocation  by  act  manifest  on  the  will. 

The  Statute  of  Frauds  provided  that  a  will  devising  land, 
"or  any  part  thereof,"  might  be  revoked  by  the  acts  there  speci- 
fied, with  intention  to  revoke  the  same.  Under  statutes  con- 
taining similar  provisions,  it  is  held  that  a  will  mav  be  par- 
tially revoked  by  cancelling  or  burning,  etc.,  one  or  more 
clauses,  with  intention  to  revoke  such  clause  or  clauses,  pro- 
vided that  such  cancellation  and  the  like  merely  revokes  pre- 
vious devises,  and  does  not  make  a  new  devise.^^  Thus  a  devise 
of  a  fee  could  be  cut  down  to  a  life  estate  by  striking  out  the 
words  "her  heirs  and  assigns  forever"  after  execution.^^  But 
where  the  words  cancelled  or  cut  out  are  so  connected  with 
the  rest  of  the  will  that  if  such  a  partial  revocation  were  al- 
lowed it  would  effect  a  new  devise  without  any  re-publication, 
such  partial  revocation  is  not  allowed  unless  the  statutes 
permit  revivor  of  a  will  without  re-publication.^''' 

The  act  of  erasing  or  cancelling  one  or  more  clauses  of  a  will, 
with  intent  to  revoke  them  alone,  does  not  as  a  rule  revoke  the 
will  as  a  whole,  as  the  intention  to  revoke  is  clearly  wanting.^** 

55  Swinton  v.  Bailey,  48  L.  J.  Ex.  534 ;    In   re   Kirkpatrick,    22    N.    J. 

57;  4  App.  Cas.  70;  Goods  of  Leach,  Eq.    463;    Tomlinson's    Appeal,    133 

63  L.  T.  Ill;   Goods  of  Woodward,  Pa.  St.  245;   Johnson  v.  Brailsford, 

L.  R.  2  P.  206 ;    19  W.  R.  448  ;   40  2  Nott  &  M.  272. 

L.  J.  P.  17;  24  L.  T.  40;  Sutton  v.  56  Swinton  v.  Bailey,  48  L.  J.  Ex. 

Sutton,  Cowp.  812;  Larkins  v.  Lar-  57;   4  App.  Cas.  70. 

kins,    3   Bos.    &   P.    16;    Roberts   v.  57  Larkins   v.    Larkins,    3    Bos.    & 

Round,     3     Hagg.     548;     Short     v.  P.    16;    Miles's    Appeal,    68    Conn. 

Smith,    4    East,    418;     Martins    v.  237;    Esohback    v.    Collins,    61    Md. 

Gardner,    8    Sim.    73,    5    L.    J.    Ch.  478      (where    the     words     cancelled 

305;    Swinton   v.    Bailey,    45    L.    J.  would    have    enlarged   a   life   estate 

Ex.   427;   Mence  v.  Mence,    18   Ves.  to  a  fee.) 

Jr.  348 ;   Francis  v.  Grover,  5  Hare  ss  Goods  ot  Woodward,  L.  R.  2  P. 

39     (obiter)  ;     Miles's     Appeal,     68  206;    Hesterberg   v.   Clark,    166   111. 

Conn.    237;    Wolf   v.    Bollinger,    62  241;     Wheeler     v.     Bent,     7     Pick. 

111.   368;    Brown's  Will,    1    B.   Mon.  (Mass.)     61:    Goods    of    Penniman, 

(Ky.)    56;   Wells  v.  Wells,  4  T.  B.  20     Minn.     220;     Simrell's     Estate, 

Mon.    (Ky.)    152;    Tudor   v.   Tudor,  154  Pa.  St.  604;  Pringle  v.  McPher- 

17  T.  B.  Mon.    (Ky.)    383;   Batche-  son,     2     Desaus.      (S.     Car.)      524; 


lor's  Succession,  48  La.  Ann.  278 
Bigelow  V.  Gillott,  123  Mass.  102 
Esohback  v.  Collins,  61  Md.  478 
Varnon    v.    Varnon,    67    Mo.    App. 


Stover  V.  Kendall,  1  Cold.  (Tenn.) 
557;  Cogbill  v.  Cogbill,  2  Hen.  & 
M.    (Va.)    467. 


284  LAW     OF     WILLS. 

A  cancelation  of  parts  of  a  will  which  leaves  the  remainder  un- 
intelligible is  held  to  operate  as  a  revocation  of  the  entire 
will.59^ 

This  exception  to  the  general  rule  rests  on  the  theory  that 
testator  intended  a  revocation  of  the  clauses  cancelled  at  least ; 
and  that  he  could  not  have  intended  the  remainder  of  his  will 
to  be  enforced  in  the  condition  assumed.  Furthermore,  the 
courts  will  not  enforce  a  vague  and  uncertain  will,  whether  it 
is  so  because  of  cancellations  or  because  of  defects  in  the  original 
scheme  of  dispositon. 

Recent  statutes  either  expressly  provide  that  no  alteration  in 
the  contents  of  a  will  shall  have  any  effect  unless  executed  with 
the  form.alities  required  for  the  execution  of  a  will,  or  omit  all 
reference  to  revocation  of  a  part  of  a  will. 

Under  such  statutes  it  is  held  that  if  the  words  sought  to  be 
cancelled  are  still  legible  no  partial  revocation  of  the  will  can 
be  permitted  even  if  the  testator  intended  such  revocation.^*' 

Thus,  testator  pasted  pieces  of  paper  over  parts  of  his  will 
and  on  his  death  the  will  was  admitted  to  probate  in  1874,  with 
the  parts  thus  covered  probated  in  blank.  In  1893  it  was  found 
that  these  parts  could  be  read,  and  as  experts  testified  that  they 
could  be  read  without  resort  to  artificial  means  these  parts  were 
admitted  to  probate.^^  But  if  the  words  cancelled  are  illegible, 
and  can  not  be  proved  otherwise,  the  court  will  necessarily  be 
unable  to  probate  them ;   and  as  it  does  not  appear  to  be  the  in- 

59  Olmstead's     Estate,     122     Cal.  Ecc.     5;       Cooper    v.     Brockett,     4 

224;  Miih's  Succession,  35  La.  Ann.  Moore,  P.  C.  419;   Goods  of  Green- 

394.    (Where  sixteen  out  of  twenty  wood     (1892),    Prob.    7;    Ffinch     v. 

legacies    were    cancelled    and    testa-  Combe    (1894),   Prob.    191;    6   Rep. 

tor's  signature  was  so  blotted  as  to  54.5;  Locke  v.  James,  13  Law  J.  Ex. 

be   legible   only   by   experts.)    Dam-  186;    Law   v.    Law,     83    Ala.    432; 

man    v.    Damman     (Md.)     1894,    28  Lovell   v.   Quitman,   88   N.   Y.    377; 

Atl.    408.     (One-third   of    the    items  Giffin  v.  Brooke,  48  O.   S.  211. 

were    erased,    the    remainder    being  ei  Ffinch  v.  Combe    (1894),  Prob. 

thus    left    in     part     unintelligible;  191;   6  Rep.  545. 
testator's    signature    not    canceled.) 

«"  Burgoyne   v.    Showier,    1     Rob. 


LAW     OF    WILLS.  285 

tention  of  the  testator  to  revoke  the  entire  will,  it  must  be  pro- 
bated with  the  cancelled  parts  blank. *^^ 

The  only  point  upon  which  there  seems  to  be  actual  conflict 
of  authority  in  this  connection  is  where  the  statute  omits  all 
reference  to  the  revocation  of  part  of  a  will,  neither  expressly 
permitting  it  nor  expressly  prohibiting  it.  The  weight  of  au- 
thority seems  to  be  that  under  such  statute  a  partial  revocation 
of  a  will  is  impossible  in  law,  if  the  words  sought  to  be  revoked 
are  still  legible.^^ 

A  contrary  view  is  entertained  in  Massachusetts.  In  that 
state  their  statute  of  1783  permitted  expressly  a  revocation  of 
a  devise  of  land  "or  of  any  clause  thereof"  in  the  manner  spec- 
ified. The  revision  of  1836  omitted  the  words  "or  of  any  clause 
thereof."  The  court  held  that  under  the  revision  the  right  of 
partial  revocation  still  existed,  saying:  "The  power  to  revoke 
a  will  includes  the  power  to  revoke  any  part  of  it.  If  we  were 
to  hold  that,  under  this  provision,  a  testator  could  not  revoke  a 
part  of  a  will  by  cancelling  or  obliterating  it,  we  should  be 
obliged  by  the  same  rule  of  construction  to  hold  that  he  could 
not  revoke  a  part  by  a  codicil,  which  would  be  against  the  uni- 
form practice  of  this  commonwealth,  sanctioned  by  numerous 
decisions.  We  are  therefore  of  the  opinion  that,  in  this  case, 
the  cancellation  by  the  testator  of  the  sixth  and  thirteenth 
clauses  of  his  will  by  drawing  lines  through  them,  with  inten- 
tion of  revoking  them,  was  a  legal  revocation  of  those 
clauses."*^^ 

§255.     Revocation  prevented  by  fraud. 

As  we  have  seen,*^^  prior  to  the  Statute  of  Frauds,  or  Amer- 
ican statutes  of  revocation  based  thereon,  a  written  will  might 
be  revoked  by  the  acts  and  declarations  of  testator,  whether 
apparent  on  the  will  or  not.     Where  the  law  was  in  such  con- 

62Hobbs  V.  Knight,   1   Curt.  768;  8    L.   R.   A.    383;    Giffin   v.    Brooke, 

Townley  v.  Watson,  3  Curt.  761;  In  48   0.   S.  211. 

re  Brewster,  29  L.  J.  P.  69 ;  Goods  64  Bigelow   v.    Gillott,    123    Mass. 

of  James,  1  S.  &  T.  238.  102. 

63  Law    V.     Law,    83     Ala.     4,32 :  er,  jciec  Sec.  244. 
Gardiner  v.  Gardiner,  65  N.  H.  230 ; 


286  LAW     OF     WILLS. 

ditioii  testator's  attempt  to  destroy  his  will,  which  was  frus- 
trated by  the  fraud  of  devisee,  who  represented  that  the  will 
was  already  destroyed,  might  act  as  a  revocation  of  such  will.^® 

Subsequent  to  the  passage  of  these  statutes,  since  their  pro- 
visions require  that  one  of  the  specified  acts  be  manifest  upon 
the  will  in  order  to  effect  a  revocation,  a  question  of  consider- 
able difficulty  is  presented  where  testator  intends  to  and  wishes 
to  revoke  his  will,  but  is  prevented  from  so  doing  by  fraud, 
deceit  and  the  like.  The  weight  of  authority  is  that,  in  the 
absence  of  all  the  acts  specified  as  necessary  in  the  statute,  to 
be  manifest  on  the  will,  the  will  can  not  ^be  revoked  at  law  by 
testator's  intention  alone,  no  matter  by  what  deceit  this  inten- 
tion may  be  prevented  from  manifesting  itself  by  one  of  the 
required  acts.^'^ 

This  rule  is  followed  even  where  the  testator  is  by  fraud  and 
deceit  induced  to  believe  that  his  will  has  actually  been  de- 
stroyed in  obedience  to  his  instructions.®* 

Thus,  a  blind  testator  ordered  his  will  to  be  brought  to  him, 
felt  it  and  recognized  it  by  the  seals  on  it,  and  then  ordered  his 
grandson  to  destroy  it;  and  the  grandson  threw  another  paper 
into  the  fire,  and  the  testator  heard  the  noise  of  the  burning  and 
obser\"ed  the  smell,  and  was  assured  by  his  grandson  that  the 
will  was  burning,  and  was  thus  induced  to  believe  that  his  will 
was  destroyed,  in  which  belief  he  died.  It  was  held  that  such 
acts  did  not  amount  to  a  revocation.®^ 


66  Card  V.  Grinman,  5  Conn.  164.  to   be   explained   fully   as   much   on 

67  Doe  V.  Harris,  8  Ad.  &  El.  1 ;  the  theory  that  testator  abandoned 
35  E.  C.  L.  299 ;  Gains  v.  his  intention  to  revoke  at  the  pres- 
Gains,  2  A.  K.  Marsh.  (Ky. )  ent  time  and  merely  intended  to  re- 
190 ;  Graham  v.  Burch,  47  voke  in  the  future ;  for  it  appears 
Minn.  171;  Hise  v.  Fincher,  10  Ired.  very  doubtful  if  testator  was  de- 
(N.  Car.)  139;  Giles  v  Giles,  (N.  ceived  into  thinking  his  will  was 
C. )  Taylor's  Conf.  Rpt.  290,  174;  destroyed,  though  devisee  undoubt- 
Delafield    v.   Parish,   25     N.   Y.   9 ;  edly  tried  so  to  deceive  him. 

Kent    V.    Mahaffey,    10    0.    S.    204:  es  Hise   v.    Fincher,    10    Ired    (N. 

Boyd  V.   Cook,    3   Leigh    (Va.)    32;  Car.)   139:  Kent  v.  Mahaffey,  10  O. 

Malone     v.    Hobbs.    1     Rob.     (Va.)  S.    204;     Boyd    v.    Cook,    3    Leigh 

346;    Blanchard    v.    Blanchard,    32  (Va. )  32 :  Marlowe  v.  Hobbs,  1  Rob. 

Vt.  62.  (Va.)   346. 

Doe  V.  Harris,  supra,  is  probably  69  Kent  v.  ]\Iahaffey.  10  0.  S.  204. 


287 

LAW     OF    WILL^. 


So  wbere  testator  put  his  will  in  a  stove  upon  the  kmdlmgs, 
wUch  were  uot  yet  set  on  five,  meaning  to  bum  >t  and  testator  . 
toghter.  a  heneiiciary  under  the  will,  removed  .t  before  the 
fire  was  started,  this  was  held  not  to  be  a  revocation. 

Some  of  the  cases  often  cited  on  this  po.nt  are  hardly  appU- 
cable     Thus,  where  testator's  wife  informed  hnn  that  she  had 
uled  his  will  without  his  authority,  and  thereby  mduced  hnn 
to  desist  from  searching  for  it  to  destroy,  it  was  held  that  fraud 
Ih   not  operat.  as  a  revocation,  and  that,  furthermore,  even 
Tthe  statements  of  the  wife  were  true  they  would  not  a,nou  t 
to  a  revocation,  as  the  destruction  alleged  was  neither  by  tes- 
tator nor  bv  his  previous  authority."  .  ,       .      .1      •»,. 
A  few  iurisdictions  hold,  contrary  to  the  weight  of  author  ty, 
that  where  testator  is  deceived  into  thinking  that  his  wi  1  is 
destroyed,  it  operates  as  a  revocation."    Thus,  in  a  case  where 
testatrix  Lept  a  red  ribbon  tied  around  her  will  and  in  some 
wav,  probably  by  fraud,  this  ribbon  was  transferred  to  another 
document,  which  latter  document  testatrix  burned  without  look- 
in.  at  it  it  was  held  that  if  testatrix  believed  she  was  burning 
her  will  it  would  operate  as  a  revocation. 

The  last  case  well  illustrates  the  danger  of  attempting  by 
judicial  legislation  to  add  to  the  statutory  requirements  for 

revoking  a  written  will. 

An  attempt  has  been  made  to  treat  such  acts  as  practically 
effecting  a  revocation  in  equity  though  not  in  law,  and  to  work 
out  this  theorv  by  holding  the  beneficiary  as  a  trustee  for  those 
who  would  have  taken  the  property  had  the  will  been  revoked 
Obiters  are  found  to  this  effect  in  cases  where  the  only  point 

TO  Graham    v.    Burch,    47    Minn.       practiced  this   deceit    (i.   e     substi- 
^70  Graham    v.  ^^^^.^^^   ^^   ^^^   j^^^^^.   ^^^,  ^^^^  ^^^ID 

^"^'  ,  ,r      q      iKxr    T    Fn        upon   the   old   man   and   the   latter 

.;;.''olt:v''SHrfe;stP:;      Z.    ^^^-oy..   «.e    lette.    tM„..n. 
290,  unngan  v.  .^  ^^^^  ^^^  ^.jl^  ^^^.^  circurast.iiiccs 

®*;.Cavd  V.  Grinman.  5  Conn.  168.      were  equivalent  to  »««';-"""  ";, 
,.  ..  .ee.,e.  .e.re  t.e  ...ate      revocation   o     *  »  w„     ,«<.    a„a 

rv:rTC"n.TrG:::r,44S>.  rt,,..  o,.  not  .,..  .et.  we.  i- 

in  this  case  the  court  said:  "The  proof. 

Judge  ...  should     have     told     the  -  Smdey     v.     Gambill,   2      Head 

jury  in  effect  that  if  Matthews  had  (Tenn.)    164. 


288  LAW    OF    WILLS. 

presented  for  adjudication  was  the  effect  of  these  acts  in  law/^ 
But  where  the  question  has  been  presented  squarely  by  the 
record  the  courts  have  held  that  equity  could  not  ignore  the 
words  of  the  statute  of  revocation.  ''The  statute  was  designed 
to  prevent  the  frauds  and  perjuries  arising  out  of  mere  parol 
revocations,  and  to  sanction  a  recovery  in  this  case  would  open 
the  door  for  the  very  evils  which  the  statute  intended  to  ex- 
clude." '^ 

In  all  the  cases  cited,  however,  testator  was  under  no  coercion 
or  restraint  whereby  he  was  prevented  from  revoking  his  will 
by  making  a  new  will  or  resorting  to  other  statutory  methods. 
As  to  what  view  the  courts  would  take  of  a  case  where  testator 
was  not  only  misled  into  thinking  his  will  revoked,  but  also 
prevented  by  actual  coercion  from  doing  some  further  act  which 
would  revoke  it  in  any  event,  we  have  only  a  few  scattered 
obiters  to  guide  us.  While  these  seem  adverse  to  giving  any 
remedy  not  specified  by  statute,  it  seems  difficult  to  believe  that 
a  wrong  so  extreme  will  not  in  some  way  be  remedied  by  the 
law. 

§256.     Animus  revocandi. — In  general. 

In  revocation  by  a  specific  act  manifest  upon  the  will,  the 
statutes  provide  that  such  act  shall  be  a  revocation  only  when 
done  animo  revocandi,  with  intent  to  revoke  the  will.  If  such 
intention  is  absent,  the  mere  act  of  tearing,  cancelling  and  the 
like  has  no  effect  to  revoke  the  will.'^^ 


■4  Card  V.  Grinman,  5  Conn.  1G8 ;  sufficient,    for   that   may   have   been 

Gaines   v.   Gaines,    2   A.   K.   Harsh.  occasioned  by  mistake  or  fraud,  or 

(Ky. )     190;    Blanchard    v.    Blanch-  as    in   the    case   of   a    testator   who 

ard,  32  Vt.  62.    In  Graham  v.  Burch,  since  the  making  of  his  will  has  be- 

47    Minn.     171,    the    question    was  come    insane,    it    may    be    accomp- 

raised   in   argument,   but   the   court  lished    A\nthout    any    lawful    intent 

refused  to  consider  it  in  a  proceed-  whatever.     Again,  the  mere  intent, 

ing  to  contest  a  will  as  "not  prop-  without   some   physical   act  tending 

erly    before    us    for    our    considera-  to  the  destruction  of  the  will,  and 

tion."  sufficient  to  fulfill  the  requirements 

75  Kent  V.  Mahafl'ey,  10  O.  S.  204.  of  the  statute,  for  very  ob\ious  rea- 

76  "Mere      physical      destruction,  sons  is   insufficient,   since  the   Stat- 
however  complete  it  may  be,  is  not  ute     expressly     requires     the    joint 


LAW     OF     WILLS.  289 

§257.     Animus  revocandi. — Who  is  capable  of  revoking  a  will. 

The  act  of  revocation  may  take  place  without  the  intention 
to  revoke  in  any  one  of  several  different  ways. 

First.  The  testator  may  not,  at  the  time  that  he  performs 
the  act,  be  competent  to  make  a  will ;  and  in  such  case  he  can 
not  form  the  intention  to  revoke  a  will.  A  will  can  be  revoked 
only  by  a  person  of  sufficient  age,  mind  and  memory  to  make 
a  valid  will.  The  rules  already  given  as  to  capacity  for  making 
a  will  apply  here  fully.*^^ 

Thus,  where  a  person  suffering  from  softening  of  the  brain 
tore  his  will  in  five  pieces,  it  was  held  that  these  pieces  con- 
stituted his  valid  will,  it  appearing  that  he  did  not  at  that  time 
possess  sufficient  mind  and  memory  to  make  a  valid  will.'^^ 

So  the  act  of  an  insane  man  can  not  revoke  a  will,'^^  nor  the 
act  of  one  who  is  suffering  from  delirium  tremens.^^ 

Since  the  intention  to  revoke  is  an  essential  element  of  revo- 
cation by  act  manifest  on  the  will,  it  follows  that  where  such 
outward  act  is  caused  by  the  undue  influence  of  another,  it  is 
not  a  revocation.^^ 

It  is  possible  for  a  testator  under  guardianship  to  possess 
testamentary  capacity.^^  Accordingly,  when  one  under  guar- 
dianship destroys  his  will  with  the  intention  of  revoking  it, 

union    of    act    and    intent."      01m-  Pa.  St.  218 ;  Ford  v.  Ford,  7  Hump, 

stead's   Estate,    122   Cal.   224;    Pot-  (Tenn.)    92;    Jones   v.    Roberts,   84 

ter's  Will,  33  N.  Y.  S.  R.  93G;    12  Wis.   4G5. 

N.  Y.  Supp.  105.  78  Goods   of   Hine    (1893),    Prob. 

77  Brunt    V.     Brunt,    L.   R.    3    P.  282. 

37:    21    W.   R.    392.   28   L.   T.    368:  79  Lang's     Estate,     65     Cal.     19; 

Goods  of  Hine    (1893),   Prob.   282:  Forbing    v.    Weber,    99    Ind.    588; 

Lang's    Estate,    65    Cal.    19;    John-  Ford   v.    Ford,     7     Hump.     92     (26 

son's    Will,    40    Conn.    587;    Link-  Tenn.). 

meyer    v.     Brandt,     107     lo.     750 ;  so  Brunt  v.  Brunt,  L.  R.  3  P.  37 ; 

Forbing   v.    Weber,     99     Ind.     588 ;  28  L.  T.  368  ;  21  W.  R.  392. 

Allison   V.    Allison.    7    Dana    (Ky.)  si  Button  v.  Watson,   13  Ga.   63; 

94 ;   Gregory  v.  Gates,  92  Ky.   532 ;  Laughton      v.      Atkins,       1       Pick. 

Connelly     v.     Beal,     77     Md.     116;  (Mass.)    535;    Rich    v.    Gilkey,    72 

Rhodes    v.    Vinson,    9    Gill.     (Md.)  Me.  595;   Mclntire  v.  Worthington, 

169;    Mclntire   v.    Worthington,    68  68    Md.    203;    Vorhees    v.    Vorhees, 

Md.  203;  Waldron's  Will,  44  N.  Y.  73  Me.   595. 

Supp.   353;    Delafield  v.   Parish,   25  82  See  Sec.  115. 
N.  Y.   9;    Gardner   v.  Gardner,   177 


290  LAW    OF    WILLS. 

this  effects  a  revocation  if  such  person  had  at  that  time  capacity 
to  make  a  will.** 

§258.     Animus  revocandi. — Mistake  of  fact. 

Second.  The  act  of  revocation  may  be  done  by  a  competent 
testator  under  a  mistake  of  fact.  If  testator  acts  through  a 
mistake  of  fact  as  to  the  identity  of  the  paper  or  as  to  the  nature 
of  the  act  he  does,  no  revocation  is  effected,  even  though  there 
is  such  act  manifest  upon  the  paper  as  would  constitute  a  revo- 
cation if  done  with  intent  to  revoke.*"*  So,  where  the  act  mani- 
fest upon  the  instrument  is  done  unintentionally,  no  revocation 
is  effected. 

Thus,  in  an  early  English  case  a  testator  threw  ink  upon  his 
will  by  mistake  instead  of  sand,  to  blot  it.  It  was  held  that 
this  was  not  such  a  cancellation  as  would  revoke  the  will.*^ 

Conditional  revocation  is  really  a  branch  of  this  subject; 
but  as  it  applies  to  wills  revoked  by  a  later  instrument,  as 
well  as  by  acts  manifest  upon  the  face  of  the  will,  it  will  be 
discussed  subsequently.*^ 

§259.     Animus  revocandi. — Mistake  of  law. 

Where  the  will  is  cancelled,  torn,  etc.,  by  reason  of  a  mis- 
take of  law,  the  weight  of  authority  is  that  this  does  not  effect 
a  revocation  if  the  evidence  shows  that  the  revoking  act  was 
done  solely  by  reason  of  the  mistake  of  law.*'^ 

So,  where  testator  revokes  a  later  will,  the  destruction  of 
which  under  the  law  then  in  force  does  not  revive  the  earlier 
will,  under  a  mistake  of  law,  thinking  that  such  earlier  will 
will  thereby  be  revived,  it  is  held  that  the  intention  to  revoke 

83Linkmeyer   v.    Brandt,    107    lo.  Smiley    v.    Gambill,     (39    Tenn.)     2 

750.                '  Head.    (Tenn.)    164. 

84  Goods  of  Wheeler,  49  L.  J.  P.  §5  Burtenshaw   v.    Gilbert,   Cowp. 

29;  44  J.  P.  285;   Smock  v.  Smock,  52;   L®fft,  465. 

3  Stock.  156;   Beauchamp's  Appeal,  86  See  Sees.  275-277. 

4  Mar.      (Ivy.)      363;      Burns     v.  87  Semmes  v.   Semmes,  7  H.  &  J. 
Burns,     4     S.'    &    R.     (Pa.)     295;        'Md.)    388. 


LAW    OF    WILLS. 


291 


the  later  will  was  conditioned  upon  the  revivor  of  the  earlier, 
and  the  condition  failing,  the  intention  to  revoke  does  not 
exist.^* 

Thus,  where  the  testator  believed  that  the  will  was  invalid, 
and  for  that  reason  alone  tore  it,  it  was  held  that  such  acts 
did  not  of  themselves  amount  to  a  revocation.  In  this  case, 
however,  the  intention  to  revoke  was  caused  by  a  mistake  of 
fact,  and,  furthermore,  was  abandoned  before  the  act  of  revo- 
cation was  completed.^® 

So,  where  a  will  was  cancelled  by  testator  by  reason  of  a 
mistake  as  to  the  legal  effect  of  a  deed,  it  was  held  that  such 
will  was  not  revoked,  though  probate  should  be  in  solemn 
form.^^ 

§260.     Animus  revocandi. — Attempt  to  alter  v/ill. 

The  ai^t  of  revocation  may  be  done  by  testator  as  a  part  of 
an  unsuccessful  attempt  to  alter  his  will  by  the  erasure  of  a 
part  of  the  will  and  the  insertion  of  new  provisions.  Where 
this  is  the  object  of  such  erasure,  and  the  interlineations  are 
invalid  because  they  are  not  executed  in  the  manner  prescribed 
by  statute,  the  intention  to  revoke  does  not  exist,  and  the  will 
as  originally  drafted  is  in  force.®^ 


88  Powell  V.  Powell,  35  L.  J.  P. 
100;  L.  R.  1  P.  209;  14  L.  T.  800; 
Eckersley  v.  Piatt,  36  L.  J.  P.  7; 
L.  R.  1  P.  282;  15  L.  T.  327;  15  W. 
R.  232. 

James  v.  Shrimpton,  1  Prob.  Div. 
431.  (This  case  may  be  explained 
on  a  different  theory  of  the  law. 
The  second  will  ( here  a  codocil ) 
could  not  be  found,  but  there  was 
no  direct  evidence  to  show  that  he 
had  destroyed  it;  while  his  declara- 
tions showed  that  he  looked  upon 
bis  will  as  being  in  force.  The 
court  may  have  found  that  he  had 
not  destroyed  the   second  will.     It, 


however,  assumed  that  he  destroyed 
it,  but  explained  the  case  on  the 
theor}^  given  in  the  text.) 

89  Giles  V.  Warren,  41  L.  J.  P. 
59;  L.  R.  2  P.  401;  26  L.  T.  780; 
20  W.  R.  827;  Semmes  v.  Semmes, 
7  H.  &  J.  388. 

90  Goods  of  James,   19  L.  T.  610. 

91  Onions  v.  Tyrer,  1  P.  Wms. 
343;  Wolf  V.  Bollinger,  62  111.  368; 
Youse  V.  Foreman,  5  Bush  (Ky.) 
337;  Thomas's  Will,  Minn.  79 
N.  W.  104;  Varnon  v.  Varnon,  67 
Mo.  App.  534:  Pringle  v.  McPher- 
son,  2  Des.  524;  Stover  v.  Kendall, 
1   Cold.  557. 


292  LAW    OF    WILLS. 

§261,     Animus   revocandi. — Destruction   without    testator's   au- 
thority. 

Where  the  will  is  cancelled,  destroyed  and  the  like  without 
the  previous  permission  and  authority  of  testator,  such  acts  are, 
of  course,  done  without  any  intent  on  testator's  part  to  revoke, 
and  do  not  effect  a  revocation.^^ 

Where  the  evidence  left  it  doubtful  how  the  will  was  de- 
stroyed or  by  whom,  or  whether  testator,  who  was  present,  was 
conscious  at  the  time,  it  was  held  that  since  it  was  destroyed 
in  the  lifetime  of  testator,  it  must  be  sliown,  in  order  to  pre- 
vent a  revocation,  that  the  destruction  was  fraudulent.^^ 

In  other  states  a  destruction  by  some  one  other  than  testator 
in  testator's  lifetime,  while  not  operating  as  a  revocation,  may 
leave  the  will  in  the  anomalous  condition  of  being  unrevoked 
and  yet  impossible  to  probate.^"* 

While  it  has  been  queried  whether  testator  can,  by  subsequent 
ratification,  make  an  unauthorzed  destruction  operate  as  a 
revocation,^^  the  better  view  seems  to  be  that  he  can  not.^^ 

So,  where  the  intention  to  revoke  is  abandoned  before  the 
act  of  revocation  is  completed,  it  has  been  held  that  the  act 
done  is  not  to  be  considered  done  with  intent  to  revoke,  and  does 
not  effect  a  revocation.^"^ 

§262.     Revocation  by  later  instrument. — In  general. 

Since  a  will  is  always  revocable,  a  will  valid  when  made 
may  be  superseded  or  revoked  by  a  later  instrument.  The 
questions  under  this  topic  may  be  grouped  iinder  two  heads: 
First.     By  what  sort  of  instrument  a  testator  may  revoke  his 

92  Mills  V.  Millward,  59  L.  J.  P.  es  Mills  v.  Millward,  59  L.  J.  P. 
23;  15  P.  D.  20;  61  L.  T.  651;  23;  15  P.  D.  20:  61  L.  T.  651. 
Cheever  v.  North,  106  Mich.  390,  96  Mundy  v.  Mundy,  2  McCart. 
Mundy  v.  Mundy,  64  N.  W.  455;  (K  J.)  15  N.  J.  Eq.  290;  Clin- 
2  MeCart.  (N.  J.)  15  N.  J.  Eq.  290;  gan  v.  Mitcheltree,  31  Pa.  St.  25. 
Clingan  v.  Mitcheltree,  31  Pa.  97  Giles  v.  Warren,  41  L.  J.  P. 
St.  25;  Means  v.  Moore,  3  McC.  (S.  59;  20  W.  R.  827;  L.  R.  2  P.  401; 
Car.)    282:    Harp.   314.  26    L.    T.    780;    Doe    d.    Perkes    v. 

93  Kidder's   Estate,    66    Cal.    487.  Perkes,  3  B.  &  Aid.  489. 

94  See   Sec.    .348. 


LAW     OF     WILLS.  ^""^ 


will;  and  second,  assuming  that  the  instrument  is  sufficiently 
formal  to  eli'ect  a  revocation,  ifsuch  is  testator's  intention,  to 
determine  whether  his  intention  to  revoke  appears  upon  the 
face  of  the  later  instrument. 

The  doctrine  of  revocation  by  a  later  will  is  not  affected  by 
statutes  on  the  subject  of  revocation,  which  prescribe  the  for- 
malities of  burning-  tearing  and  the  like.  Even  under  such 
statutes  a  later  will  inconsistent  with  the  earlier  one,  or  con- 
taining an  express  revocation  clause,  revokes  the  earlier.^^ 

§263.     Revocation  by  informal  instrument. 

In  the  absence  of  any  statute  upon  the  subject,  a  will  was 
held  to  be  revoked  by  any  writing,  no  matter  how  informal, 
which  showed  testator's  intention  that  his  will  should  thereby 
be  revoked.''^     But  even  where  a  will  may  be  revoked  by  a 
"writing,"  it  is  held  that  a  codicil  not  properly  executed  is  not 
a  "writing"  within  the  meaning  of  the  statute.    This  distinction 
is  based  upon  the  doctrine  of  dependent  relative  revocation. 
The  assumption  is  made  that  the  revocation  clause  of  the  cod- 
icil is  inserted  in  order  to  permit  of  the  dispositive  provisions 
therein;    and  if  the  codicil  is  not  so  executed  as  to  give  effect 
to  these  provisions,  it  is  treated  as  entirely  void,  including  the 
clause  of  revocation.^  "^^ 

§264.     Revocation  by  formal  instrument. 

As  the  dangers  arising  out  of  loose  revocation  became  ap- 
parent, and  statutes  were  passed  limiting  and  controlling 
revocation  by  act  manifest  on  the  will,  the  legislatures  began 
to  pass  other  statutes  providing  that  a  will  could  be  revoked 

98  Dempsey  v.  Lawson,  2  P.  D.  98.  wife  shall  claim  no  right  of  dower 

99  Witter  \.  Mott,  2  Conn.  67.  and  bound  himself  accordingly. 
(In  this  case  the  will  was  held  r*-  Samuel  Nott.")  Brown  v.  Thorn- 
voked  by  the  following  writing  on  dike,  15  Pick.  388;  Johnson  v. 
the   back   of  the  will:      "This  will  Brailsford,  2  N.  &  McC.  272. 

is    invalid   March    9,    1813,    as    Mr.  loo  Boylan    v.    Meeker,    4    Dutch. 

Suther   Smith   has   agreed  that  my       274 ;  Heise  v.  Heise,  31  Pa.  St.  246. 


294  LAW    OF    WILLS. 

by  a  later  instmment  only  when  executed  with  the  same 
formalities  as  a  new  will.  Owing  to  the  fact  that  testaments  of 
personalty  required  a  less  formal  execution  than  wills  of 
realty,  they  remained  for  a  time  subject  to  revocation  by 
informal  instruments.^^' 

It  is  now  settled  by  statute,  in  most  jurisdictions,  that  if 
a  will  is  to  be  revoked  by  a  later  instrument;  that  instrument 
must  be  executed  with  the  formalities  of  a  will,  and  that  no 
matter  how  clear  testator's  intention  may  be,  an  instrument 
executed  without  these  forms  can  not  revoke  a  will.'°^ 

Hence,  where  a  will  must  be  attested  by  three  witnesses,  a 
paper  attested  by  two  can  not  revoke  a  written  will.'*^^ 

In  jurisdictions  where  testaments  of  personalty  may  be  ex- 
ecuted with  less  formality  than  wills  of  real  estate,  an  instru- 
ment which  is  valid  as  a  testament,  but  not  valid  as  a  will, 
may  revoke  an  earlier  instrument,  good  both  as  a  will  and  as  a 
testament,  as  far  as  the  personal  property  of  testator  is  con- 
cerned.^^'* 

So  a  holographic  will,  as  far  as  it  is  valid,  will  revoke  a 
will  executed  with  the  formalities  required  of  ordinary  written 
wills.1^5 


101  Brown  v.  Thorndike,  15  Pick.  io4  I  inberry  v.  Mason,  2  Comyn's 
388.  Rpp-  451 ;   Montefiore  v.  Montefiore, 

102  Cheese  v.  Lovejoy,  40  L.  J.  P.  2  Addams,  354 ;  2  Eng.  Ece.  Rep. 
66;  2  P.  D.  251;  25  W.  R.  853;  342;  Brown  v.  Tilden,  5  Har.  &  J. 
Barksdale  v.  Hopkins,  23  Ga.  332;  (Md.)  371;  Marston  v.  Marston,  17 
Hollingshead  v.  Sturgis,  21  La.  X.  H.  503;  Orgain  v.  Irvine,  100 
Ann.  450;  Seymour's  Succession,  Tenn.  193;  Guthrie  v.  Owens,  2 
48  La.  Ann.  993;  Eschbach  v.  Hum.  (Tenn.)  202;  Glasscock  v. 
Collins,  61  Md.  478;  Reid  v.  Bor-  Smither,  1  Call.  (Va.)  479;  Cog- 
land,  14  Mass.  208;  Laugh  ton  v.  bill  v.  Cogbill,  2  Hen.  &  M.  (Va.) 
Atkins,  1  Pick.  535 ;  West  v.  West,  467. 

144   Mo.    119;    Morey  v.   Sohier,   63  los  Goods    of    Tumour,    56    L,    T. 

N.  H.  507;   Rudy  v.  Ulrieh,  69  Pa.  671;     Ennis     v.     Smith,     14     How. 

St.      177;      Reese     v.      Portsmouth  400;    Hooper   v.    McQuary,    5    Cold. 

Probate   Court,   9   R.   I.   434;    Ken-  (Tenn.)    129;    Gordon  v.   Whitlock, 

nedy     v.     Upshaw,     64     Tex.     411:  92  Va.  723. 

Noyes's  Will,  61  Vt.  14.  Contra,  In  re  Sober,  78  Cal.  477. 

103  Morey    v.    Sohier,    63    N.    H. 
507. 


LAW    OF    WILLS. 


295 


As  under  the  modern  statutes  words  alone  can  not  revoke  a 
written  will,  it  follows  that  a  nuncupative  will,  even  though  of 
itself  valid,  can  not  revoke  a  prior  written  will,^*^*^  except  where 
the  statute  makes  a  special  exception  in  its  favor. 

Thus,  in  Tennessee  it  is  provided  that  if  the  nuncupative  will 
is  reduced  to  writing  in  the  lifetme  of  the  testator  and  read 
over  to  him  and  approved,  it  may  operate  to  revoke  a  written 
will.io^ 

§265.     Revocation  by  later  instrument  not  a  will. 

The  instrument  by  which  a  previously  executed  will  is  re- 
voked may  be  an  instrument  executed  solely  for  that  purpose, 
and  containing  only  a  provision  for  revocation.^ °^  Such  an  in- 
strument will  be  held  to  revoke  an  earlier  will  even  in  juris- 
dictions in  which  the  later  revoking  instrument  is  itself  held 
not  to  be  a  will.-^^^ 

It  is  not  necessary  that  the  second  instrument  be  probated 
in  order  that  it  may  be  used  in  the  contest  of  the  first  will 
to  show  a  revocation  thereof.^  ^^ 

The  revoking  instrument  may  also  be  a  deed.^^^ 

100  McCune  v.  Hause,  8  Ohio  144;  It  was  duly  executed.)  Seymour's 
Brook  V.  Chappell,  34  Wis.  405.  Succession,      48      La.      Ann.      993; 

107  Woodward     v.     Woodward,     5       Noyes's  Will,  61  Vt.  14. 

Sneed   (Tenn.)  49.  los  Barksdale  v.  Hopkins,  23  Ga. 

108  Goods  of  Gosling,  55  L.  J.  P.  332 ;  Seymour's  Succession,  48  La. 
27;  11  P.  D.  79;  34  W.  R.  492;  Ann.  993;  Noyes's  Will,  61  Vt.  14. 
50  J.  P.  263.  (In  this  case  the  no  Barksdale  v.  Hopkins,  23  Ga. 
codicil  and  testator's  signature  332;  (obiter)  Noyes's  Will,  61  Vt. 
were    obliterated    by    black    marks.  14. 

Testator   then  wrote   "We  are  wit-  m  In    a    recent    Maine    case    the 

nesses  of  the  erasure  of  the  above."  grantor    of    real    property    reserved 

This   was    duly    signed   by    testator  the  power  to  appoint  to  the  use  by 

and  two  witnesses.     It  was  held  a  will   or   other    written    instrument. 

good  revocation   by  a    writing    de-  He  executed  a  will  in  which  he  ap-- 

elaring    testator's    intention    to    re-  pointed    to    the   use.      Subsequently 

voke.)      Barksdale    v.    Hopkins,    23  by   another   written    instrument   he 

Ga.  332 ;    Bayley   v.  Bayley,  5    Gush.  made    a    different    appointment.  It 
245.      (The  revoking  instrument  in  ,    was   held   that   the   second   appoint- 

this  case  was  "It  is  my  wish  that  ment    revoked    the   will..      Paine   v. 

the  will   T   made   be   destroyed   and  Forsythe,  86  Me.  357. 
my  estate  settled  according  to  law. 


296  LAW    OF    WILLS. 

§266.     "What  shows  testator's  intention  to  revoke  will. 

The  intention  of  testator  to  revoke  his  earlier  will  must  ap- 
pear on  the  face  of  the  revoking  instrument  in  jurisdictions 
where  revocation  by  parol  is  abolished.^  ^^ 

The  question  of  what  shows  testator's  intention  to  revoke  an 
earlier  will  is  thus  one  of  construction  inserted  here  for  con- 
venience of  treatment.  Thus,  a  will  in  which  testator  disin- 
herits a  daughter,  denying  that  she  is  his  child,  is  not  revoked 
bj  a  subsequent  contract  to  support  her,  made  by  way  of  com- 
promise to  terminate  a  suit  to  compel  him  to  support  her,  even 
if  the  contract  recognized  her  as  his  daughter,  and  purported  to 
be  based  on  "love  and  affection."  ^^^ 

If  the  later  instrument  is  not  a  will,  makes  no  disposition  of 
testator's  realty,  and  shows  on  its  face  that  testator  merely 
intended  to  revoke  his  will  at  some  subsequent  time,  such  in- 
strument is  not  sufficient  to  effect  a  revocation.^  ^^ 

§267.     Revocation  by  later  will. — Express  revocation  clause. 

The  later  revoking  instrument  is  much  oftener  a  will  or 
codicil. 

In  the  discussion  of  this  branch  of  the  subject  a  distinction 
must  be  noted  between  wills  which  contain  an  express  clause 
of  revocation  and  those  which  do  not  contain  such  a  clause. 

If  the  later  will  contains  an  express  clause  of  revocation,  the 
earlier  will  is  thereby  rendered  invalid,  irrespective  of  the  dis- 
position of  property  made  by  the  second  will;  ^^^  and  this  is 
true  even  if  the  other  provisions  of  the  revoking  will  proved 
ineffectual.^  ^^ 

112  Taylor  v.  Pegram,  151  111.  Burns  v.  Travis,  117  Ind.  44; 
lOG;  Hill's  Succession,  47  La.  Ann.  Smith  v.  McChesney,  2  McCart. 
329;  Kirkpatrick  v.  Jenkins,  96  359,  15  N.  J.  Eq.  359;  Snowhill  v. 
Tenn.  85.  Snowhill,   3  Zab.   448    (21   N.  J.   L. 

113  Padelford's  Estate,  190  Pa.  448)  ;  Pierpont  v.  Patrick,  53  N.  Y. 
St.  35.  591;    Price   v.   Maxwell,   28   Pa.   St. 

114  Ray  V.  Walton,  2  Mar.  (Ky.)  23;  Lutheran,  etc..  Appeal,  113  Pa. 
71.  St.  32;  Teacle's  Estate,  153  Pa.  St. 

115  Collins  V.  Elstone  (1893),  219;  Walls  v.  Walls,  182  Pa.  St. 
Prob.   1;    1   Rep.  458;   Paton  v.  Or-  226. 

merod    (1892),    Prob.    247;     Goods  us  Burns  v.  Travis,   117  Ind.  44; 

of      Carritt,      66       Law      T.      379;       Price  v.  Maxwell,  28   Pa.   St.  23. 


LAW    OF    WILLS.  297 

Revocation  is  effected  even  where  it  may  be  doubtful  if 
testator  intended  to  revoke  his  first  will  by  his  second.  In  the 
absence  of  fraud,  at  least,  the  execution  of  a  will  with  an 
express  clause  of  revocation  operates  as  a  revocation.^ ^'^  The 
revocation  clause  need  not  avoid  the  whole  of  the  earlier  will. 
If  it  expressly  revokes  a  specified  part  of  such  will  it  will  effect 
a  partial  revocation  only.^^^ 

The  will  which  contains  the  revocation  clause  may,  by  its 
phraseology,  show  that  revocation  was  not  intended.  Thus,  a 
testator  by  codicil  provided  "I  hereby  annul  and  revoke"  a 
specified  bequest.  The  rest  of  the  codicil  provided  that  said 
bequest,  instead  of  vesting  on  testator's  death,  should  not  vest 
till  the  death  of  two  other  persons.  It  was  held  that  testator 
did  not  intend  a  revocation  by  this  codicil.^  ^^ 

So,  where  a  codicil  began  "I  hereby  revoke  and  annul  all 
wills  by  me  heretofore  made,"  but  by  constant  reference  in  the 
codicil  to  the  will  to  which  codicil  was  annexed,  it  appeared 
that  the  testator  intended  such  will  to  be  in  full  force,  sup- 
plemented by  the  codicil,  the  will  was  not  revoked.^  ^*^ 

A  will  is  not  revoked  by  a  later  will,  the  revocation  clause  of 
which  was  crossed  out  by  a  lead  pencil  before  execution,  except 
as  far  as  the  second  will  was  inconsistent  with  the  first.  ^^^  And 
where  the  revocation  clause  in  the  printed  blank  on  which  the 
will  was  written  was  not  filled  up  and  was  not  read  to  testatrix 

117  Collins     V.     Elstone      (1893),  not  revocation.     Ilie   fact  that  the 

Prob.   1 ;    1   Reports,  458.  testator    called    it    by    that    name 

118 /m  re  Fence's  Estate    (1895),  does  not  make  it  so.    Revoke  means 

2  Ch.  778;  Home  for  Incurables  v.  to   recall,  to  take   back,  to  repeal. 

Noble,   172  U.   S.   383;   Johns   Hop-  Annul  means  to  abrogate,  to  make 

kins  University  v.  Pinckey,  55  Md.  void.      The    codocil    did    not    recall 

365;  McGehee  v.  McGehee,  74  Miss.  or   make   void    the    bequest   in    any 

386 ;    Jackson   v.    Shinnick,    6    Ohio  particular    except    as    to    the    time 

Dec.    37;    3    Onio   N.    P.    211;    Nel-  of  payment,   and   this    it    changed, 

son's  Estate,  147  Pa.  St.  160.  It  left  the  donee,  the  gift  and  the 

119  Watt's    Estate,    168     Pa.    St.  purpose  to  which  it  was  to  be  ap- 

422.      "What   the  testator   did   and  plied,    unchanged."      Watt's    Estate 

all   that  he  intended  to   do  was  to  168   Pa.   St.  422. 
change   the   time    for    the    payment  120  Gelbke     v.     Gelbke,     88     Ala. 

of  the  bequest  so  as  to  give  the  in-  427. 

terest  to  the  persons  named  in  the  121  Goods  of  Tonge,  66  Law  T.  N. 

codicil    while    thev    lived.      This    is  S.    60. 


298 


LAW    OF    WILLS. 


when  the  rest  of  the  will  was  read,  it  was  held  not  to  operate 
as  an  absolute  revocation  of  a  prior  will.^^^ 

§268.     Revocation  by  later  will. — No  clause  of  express  revo- 
cation. 

If  the  later  will  does  not  contain  a  clause  of  express  revo- 
cation, the  question  to  be  considered  is,  whether  or  not  the  later 
will  is  consistent  with  the  earlier  will. 

If  it  is  consistent  no  revocation  is  effected,  and  the  two  wills 
are  to  be  taken  together  as  one  in  effect.^  "^  If  the  later  will 
is  inconsistent  with  the  earlier  will,  it  revokes  the  earlier  will 
just  so  far  as  it  is  consistent  with  it,  and  no  farther  ;^^'*  and 
the  absence  of  a  revocation  clause  does  not  prevent  revocation 
to  this  extent.^ ^^  Hence,  where  there  is  no  revocation  clause, 
if  the  second  instrmnent  fails  of  effect  for  any  cause,  as  for 
invalidity  of  the  disposition  made  therein,  the  earlier  will  is 
not  thereby  revoked.^  ^^ 


122  Goods  of  Moore,  (1892),  Prob. 
378. 

i23Goods  of  Rawlings,  41  L.  T. 
559:  Bringhurst  v.  Orth  (Del.  Cli.), 
44  Atl.  783;  Snowhill  v.  Snowhill, 
3  Zab.  448  (21  N.  J.  L.  448)  ;  Wet- 
more  V.  Parker,  52  N.  Y.  450 ;  Vom 
Vechten  v.  Keator,  63  N.  Y.  52; 
Aubert's  Appeal,  109  Pa.  St.  447; 
Carl's  Appeal,  106  Pa.  St.  635; 
Gordon  v.  Whitlock,  92  Va.  723; 
Barksdale  v.  Barksdale,  12  Leigh 
535. 

Contra,  In  Barker  v.  Bell,  49  Ala. 
384,  it  was  said  that  a  later  will 
per  se  revokes  an  earlier  one,  and 
that  no  proof  of  inconsistency  be- 
tween them  was  necessary. 

124  Dempsey  v.  Lawson,  2  P.  D. 
98;  Goods  of  Hodgkinson  (1893), 
P.  339 ;  Home  for  Incurables 
V.  Noble,  172  U.  S.  383;  19  S. 
Ct.  226;  Kelly  v.  Richardson,  100 
Ala.    584;     13    So.    785;     Giddings 


V.  Giddings,  65  Conn.  149:  De  La- 
veaga's  Estate,  119  Cal.  051;  Stur- 
gis  V.  Work,  122  Ind.  134;  Mer- 
cer's Succession,  28  La.  Ann.  564 : 
Coffin  V.  Otis,  11  Met.  156  (52 
Mass.)  ;  McGehee  v.  McGehee,  74 
Miss.  386;  Marston  v.  Marston,  17 
N.  H.  503;  Snowhill  v.  Snowhill, 
3  Zab.  (21  N.  J.  L.)  448:  Lane  v. 
Hill  (N.  H.),  (1895),  44  Atl.  393; 
Newcomb  v.  Webster,  113  N.  Y. 
191:  Hoffner's  Estate,  161  Pa.  St. 
331:  McRainey  v.  Clark,  Tayl.  (N. 
Car. ) ,  278  and  698 ;  Gordon  v.  Whit- 
lock, 92  Va.  723. 

i25Cadel]  V.  Wilcocks  (1898), 
P.  21;  78  L.  T.  Rep.  83:  Tournoir 
V.  Tournoir,  12  La.  Report,  19: 
Jones  V.  Murphy,  8  W.  &  S.  275 
(Pa.) 

l26i^ustin  V.  Oakes,  117  N.  Y. 
577:  Godbold  v.  Vance,  14  S.  Car. 
458. 


LAW     OF     WILLS. 


299 


§269.     Revocation   by   later  instrument.- 
will  and  codicil. 


Distinction    between 


If  the  later  iustrument  is  termed  a  codicil,  a  strong  effort 
will  be  made  to  construe  it  so  as  to  reconcile  it  with  the  will  as 
far  as  can  possibly  be  done.^^^  The  codicil  will  be  held  to 
revoke  the  will  only  when  necessary  to  give  effect  to  the  pro- 
visons  of  the  codicil.^  ^®     So,  if  the  will  clearly  gives  an  estate, 


127  Van      Grutten      v.      Foxwell, 
(1897),     A.     C.     658;     Howell     v. 
Shepherd    (1894),  3  Ch.  649;   64  L. 
J.  Ch.   (N.  S.),  42;  /«,  re  Chifferiel, 
73    Law   T.    53;    Homer   v.    Brown, 
16  How.   (U.  S.),  354;  Home  for  In- 
curables V.   Noble,    172   U.   S.   383; 
Hitchcock    V.     Bank,    7     Ala.    386; 
Grimball   v.    Patton,    70   Ala.    626; 
Mason     v.     Smith,     49     Ala.     71 ; 
In  re   Zeile,    74   Cal.    125;    Pendle- 
ton   V.    Larrabee,     62    Conn.     393; 
Wheeler      v.      Fellows,      52      Conn. 
238;      Bringhurst     v.     Orth     (Del. 
Ch.)     44    Atl.    783;    Ellis    v.    Dick, 
165     111.    637;    Sharp     v.    Wallace, 
83    Ky.    584;    Bedford   v.    Bedford, 
99      Ky.      273;       Johns      Hopkins 
University    v.    Pinckney,     55     Md. 
365 ;    Thomas   v.   Levering,    73   Md. 
451;     Tilden    v.    Tilden,     13    Gray 
(Mass.),    103;     Holden    v.    Blaney, 
119  Mass.  421;   Pendergast  v.  Tib- 
betts,    164    Mass.    270;     Chapin    v. 
Parker,   157   Mass.    63;    Richardson 
V.    Willis,    163    Mass.    130;    Holly- 
burton  V.  Carson,  86  K  Car.  290 
Hackett  v.  Hackett,  67  K  H.  424 
Hard    v.    Ashley,    117    N.    Y.    606 
Wetmore  v.  Parker,  52  N.  Y.  450 
Crozier    v.    Bray,    120    N.    Y.    366 
Newcomb    v.    Webster,    113    N.    Y, 
191;  Collier  v.  Collier,  3  O.  S.  369 
Jones  V.    Strong,   142   Pa.   St.   496 
Rhodes's   Estate,    147    Pa.    St.   227 
Whelen's    Estate,    175    Pa.    St.    23 
Reichard's  Appeal,  116  Pa.  St.  232 
Neff's  Appeal,  48  Pa.  St,  501 ;  Pad 
el  ford's    Estate,    190    Pa.    St.    35 


Otis  V.  Brown,  20  S.  Car.  586; 
Rodgers  v.  Rodgers,  6  Heisk. 
(Tenn. ),  489;  Brown  v.  Cannon,  3 
Head.  (Tenn.)  354;  Barnes  v. 
Hanks,  55  Vt.  317;  Lyman  v. 
Morse,  Vt,  37  Atl.  1047 ;  Gordon  v. 
Whitlock,  92  Va.  723;  24  S.  E. 
342. 

"The  codicil  is  part  of  the  will 
and  they  must  be  construed  to- 
gether as  one  instrument.  If  the 
codicil  expressly  revokes  any  part 
of  the  will,  then  the  part  revoked 
must  be  stricken  out.  If  any  part 
or  clause  of  the  codicil  be  irrecon- 
cilably repugnant  to  a  clause  or 
clauses  of  the  will,  then  to  that 
extent  the  codicile  supplants  the 
will,  and  the  latter  becomes  inoper- 
ative. But  it  supplants  the  will 
only  to  the  extent  the  repugnancy 
is  irreconcilable."  Grimball  v. 
Patton,  70  Ala.  626. 

"The  Avill  and  codicil  are  to  be 
taken  and  construed  together  as 
parts  of  one  and  the  same  instru- 
ment speaking  the  language  of  the 
testator  at  the  time  of  his  death." 
Gray  v.  Sherman,  5  Allen  (Mass.) 
198,  quoted  in  Richardson  v.  Willis. 
163  Mass.   130. 

128  Vaughan  v.  Bunch,  53  Miss. 
513;  Crozier  v.  Bray,  120  N.  Y. 
366;  Hard  v.  Ashley,  117  N.  Y. 
606;  Reichard's  Appeal,  116  Pa.  St. 
232 ;  Rodgers  v.  Rodgers,  6  Heisk. 
489 ;  Jinkins  v.  Lawrence,  86  Va. 
35. 


300  LAW    OF    WILLS. 

the  codicil  must  be  equally  clear  in  order  to  revoke  such  gift.^^^ 
So  a  codicil  does  not  revoke  an  earlier  codicil,  unless  such  result 
is  absolutely  necessary  to  give  effect  to  the  later  codicil.^ ^"^  If, 
however,  the  codicil  is  clearly  inconsistent  with  the  will  it  re- 
vokes so  far  as  it  is  inconsistent;  ■'^^  and  the  fact  that  the  cod- 
icil disposes  of  the  whole  of  testator's  estate  shows  that  it  is 
inconsistent  with  a  will  which  makes  a  different  disposition 
thereof.^  ^^ 

Thus  a  residuary  clause  in  the  codicil  operates  as  a  revocation 
of  a  partial  residuary  clause  in  the  will.^^^ 

Where  the  second  instrument  is  a  will,  as  distinguished  from 
a  codicil,  the  courts  do  not  make  so  great  an  effort  to  reconcile 
it  with  the  former  will  as  they  do  in  the  case  of  a  codicil.  The 
reason  for  this  distinction  lies  in  the  fact  that  a  codicil  is  or- 
dinarily intended  merely  to  effect  some  alteration  in  the  will, 
leaving  the  rest  of  it  in  force ;  while  a  later  will  may  quite  as 
well  be  intended  to  dispose  of  testator's  property  in  disregard 
of  the  former  will. 

In  fact,  if  the  second  will  assumes  to  dispose  of  the  entire 
estate  of  testator  it  is  treated  as  revoking  the  earlier  will  as 
being  necessarily  inconsistent  with  it.^^'*  If  it  does  not,  the 
presumption  against  partial  intestacy  will  induce  the  court  to 
construe  the  two  wills  together  as  far  as  can  reasonably  be 
done.^^^     Even  where  the  later  will,  which  disposed  of  only 

129  Bedford  v.  Bedford,  99  Ky.  Vt.  274;  Dawson  v.  Dawson,  10 
273;    Sturgis    v.    Work,     122     Ind.       Leigh,   602. 

134;    Goodwin    v.    Coddington,    154  i32  piicher   v.   Hole,   7    Sim.   208; 

N.  Y.  283;   Freeman  v.  Coit,  96  N.  Hallyburton  v.   Carson,  86  N.   Car. 

Y.   63;    Viele  v.   Keeler,   129   N.   Y.  290. 

190;  Redfield  V.  Redfield,  126  N.  Y.  iss  Sturgis     v.     Work,     122     Ind. 

466.  134. 

130  Green  v.  Tribe,  9  Ch.  Div.  i34  Moorhouse  v.  Lord,  10  H.  L. 
231 ;  Goods  of  De  La  Saussaye,  Cas.  272 ;  Bobb's  Succession,  42  La. 
3  P.  &  D.  42.  Ann.    40;    Swan    v.    Houseman,    90 

131  Kelly  V.  Richardson,  100  Ala.  Va.  816;  In  re  Fisher,  4  Wis.  254. 
584;  De  Laveaga's  Estate,  119  Cal.  i35  Geaves  v.  Price,  3  S.  &  T. 
651;  Giddings  v.  Giddings,  65  Conn.  71;  Sarce  v.  Dunoyer,  11  La. 
149;  Read  v.  Manning,  30  Miss.  Rep.  220;  Austin  v.  Oakes,  117  N. 
308;  Hard  v.  Ashley,  117  N.  Y.  Y.  577;  Price  v.  Maxwell,  28  Pa. 
606;  Homer  v.  Brown,  16  How.  St.  23;  Gordon  v.  Whitlock,  92  Va. 
354   (U.  S.)  ;  Holley  v.  Larrabee,  28  723. 


LAW    OF    WILLS. 


301 


a  twentieth  of  the  estate,  began  "This  is  mj  last  will,"  it  was 
construed  together  with  the  earlier  wills.^^^ 

Especially  are  the  two  wills  to  be  construed  together  where  the 
second  will  expressly  disclaims  any  intention  of  revoking  a  prior 
will  ;^^'^  and  where  they  are  duplicates,  with  the  exception  of  one 
dispositive  clause,  the  remainder  in  the  case  cited  being  given 
after  death  of  the  life-tenant  to  different  persons  in  the  two 
wills,  and  it  is  impossible  to  ascertain  which  was  executed  last, 
neither  is  revoked,  and  both  should  be  probated.^^^ 

Where  two  wills  are  executed  at  the  same  time,  and  they  are 
exact  duplicates,  the  later  one  does  not  revoke  the  earlier.^^^  So 
two  wills  executed  on  the  same  day  are  to  be  taken  together  as 
far  as  they  are  consistent  with  each  other.-^^^ 

§270.     Effect  of  loss  of  later  instrument. 

Where  the  later  revoking  instrument  is  lost,  but  not  revoked 
or  intentionally  destroyed  by  testator,  it  may  still  be  effective 
to  operate  as  a  revocation  of  the  earlier  will.-^*^ 

The  fact,  however,  that  testator  executed  a  second  will 
which  can  not  be  found  at  his  death,  does  not  of  itself  revoke 
the  first  will. 

First,  In  order  to  effect  a  revocation,  it  must  be  shown  that 
the  second  will  was  executed  in  compliance  with  the  Statute 
of  Wills  there  in  force.^^^ 

Second,  The  contents  of  the  lost  will  must  be  proved.  In 
the  absence  of  such  proof  it  will  not  be  presumed  that  the 

136  Gordon  v.  Whitlock,  92  Va.  510 ;  Day  v.  Day,  2  Gr.  Ch.  (3  N.  J. 
723.  E.),    550;    Segare    v.    Ash,    1    Bay, 

137  Succession   of   Shaffer.   50   La.        (S.  Car.),  464. 

Ann.  601;   23  lo.  739.  "2  West   v.   West,    144   Mo.    119; 

138  Murphy's  Estate,  104  Cal.  46  S.  W.  139;  McKenna  v.  Michael, 
554.  189  Pa.  St.  440;  42  Atl.  14. 

139  Odenuaelder  v.  Schorr,  8  Mo.  Where  the  second  will  is  sup- 
App.    458.  pressed  by  a  beneficiary  under  the 

140  phipp  V.  Anglesy,  7  Bro.  F.X).  first  will,  the  law  presumes  that 
443;  Murphy's  Estate,  104  Cal.  the  second  will  was  legally  drawn 
554;  Grossman  v.  Grossman,  95  N.  and  executed.  Lambie's  Estate,  97 
Y.  145.  Mich.  49;   See  Sec.  439. 

i4iWallis    V.    Wallis,    114    Mass. 


302  LAW     OF     WILLS. 

second  will  was  so  inconsistent  with  the  first  as  to  revoke  it.^^^ 
Third,  Unless  it  is  shown  that  the  second  will  was  incon- 
sistent with  the  first,  and  was  in  force  at  testator's  death,  it 
must,  in  order  to  effect  a  revocation,  be  shown,  in  addition  to 
the  facts  of  execution,  that  the  lost  will  contained  a  clause  of 
revocation.  Unless  this  can  be  done  the  first  will  is  in  force.^'*^ 
If  the  lost  will  is  shown  to  have  contained  a  clause  of  ex- 
press revocation,  the  first  will  is  not  in  force,  even  where  it  is 
impossible  to  prove  the  contents  of  the  lost  will  further  than 
such  revocation  clause.^  ^^ 

§271,     Effect  of  revocation  of  later  instrument  at  common  law. 

When  the  revoking  will  is  itself  revoked,  the  question  of 
the  validity  of  the  first  will  arises.  Is  it  still  revoked,  or  is 
it  revived  bj  the  revocation  of  the  later  will  ? 

In  this  connection  the  courts  have  usually  discussed  two  dis- 
tinct topics :  first,  is  it  possible  by  such  revocation  of  the  second 
will  to  revive  the  first ;  and  second,  assuming  that  the  first  will 
may  be  revived  in  this  manner,  what  presumption  arises  from 
the  revocation  of  the  second  will  as  to  the  intention  of  testator 
to  revive  the  first.  As  far  as  possible,  these  two  subjects  will 
be  discussed  separately,  the  question  of  the  possibility  of  such 
revivor  being  treated  of  in  this  chapter,  and  the  subject  of  the 
presumptions  that  arise  from  the  revocation  of  the  later  will 
being  reserved  for  the  chapter  on  Evidence. 

The  English  law  prior  to  statutes  upon  this  difiicult  ques- 
tion was  in  great  confusion.     The  ecclesiastical  courts  seemed 

1*3  Hungerford      v.       Nosworthy,  was  suppressed  or  destroyed  by  the 

Shower's  cases  in  Pari.  146;   Good-  beneficiaries  under  the  first  will,  it 

right  V.  Harwood,  7  Bro.  P.  C.  344 ;  might    be   assumed    that   the   later 

Hellier  v.  Hellier,  9  P.  D.  237 ;  Mc-  will     was     inconsistent     with     the 

Intire  v.  Mclntire,   162  U.   S.   383;  earlier  will  and  operated  as  a  revo- 

In  re  Sternberg,  94  To.  305 ;  Lawson  cation    thereof.      Jones   v.    Murphy, 

V.    Morrison,    2     Dall.    (Pa.)     286;  8  W.  &  S.  275   (Pa.) 

Hylton   V.   Hylton,    1    Gratt.    (Va.)  i44  Knox   v.   Knox,    95   Ala.   495; 

161.  Cheever    v.    North,    106    Mich.    390. 

But    in    an    early    Pennsylvania  "s  Wallis    v.    Wallis,    114    Mass. 

case  it  was  held  that  when  the  evi-  510;    Day  v.   Day,   2   Gr.   Ch.   550; 

dence  showed   that  the   second  will  Segare  v.  Ashe,   1   Bay,  464. 


LAW     OF    WILLS. 


disposed  to  hold,  in  cases  of  testaments,  that  no  presumption 
arose  either  for  or  against  the  validity  of  the  first  will  upon 
such  a  state  of  facts,  and  that  the  question  was  to  be  settled 
by  the  intention  of  the  testator  as  disclosed  by  the  evidence. 

The  common  law  tribunals  in  dealing  with  wills  were  m- 
clined  to  adopt  the  theory  that  the  revocation  of  the  second 
will  raised  a  presumption  that  testator  thereby  intended  the 
first  will  to  be  in  full  force  and  effect.  This  was  a  prima 
facie  presumption  only  and  might  be  rebutted  by  evidence  of 
a  contrary  intention.^^^  The  two  sets  of  tribunals  thus 
seemed  to  agree  that  the  testator  might  revive  his  first 
will  by  the  revocation  of  his  second  if  he  intended  to  do  so. 

Further  doubt,  however,  arises  upon  attempting  an  analysis 
of  the  aerlier  English  cases  for  two  different  reasons.     First, 
it  is  not  always  clear  whether  the  English  courte  are  discus- 
sing a  case  where  the  second  will  exprassly  revoked  the  fifst, 
or  where  it  was  merely  inconsistent  with  it.^^^      Second,  m    . 
many  of  the  cases,  especially  in  the  ecclesiastical  courts,  the 
declarations  of  the  testator  might  have  been  sufficient  to  re- 
publish his  first  will,  as  no  set  form  was  required  for  the  ex- 
ecution of  wills  of  personal  property.     It  is  therefore  at  times 
hard  to  determine  whether  the  first  will  is  valid  because^  it 
has  been  rc^published  after  the  revocation  of  the  second  will, 
or  whether  the  mere  revocation  of  the  second  will,  with  intent 
to  revive  the  first,  revived  it  without  re-publioation.^^^ 

§272.     Effect  of  revocation  of  later  instrument  under  modern 
statutes  in  England. 
This  condition  of  uncertainty  upon  an  important  and  often 

i46Usticke    V.     Baudeii,     2     Add.  Cow.  49 ;   Bates  v.  Holman,  3  H.  & 

Ecc    116;   Moore  v.  Moore,   1   Phil-  M.  503. 

lim    375,  406;   Wilson  v.  Wilson.  3  But   where   the    earlier   will   was 

Phillim  '   543 ;      Kirkcudbright      v.  destroyed     the     revocation     of     the 

Kirkcudbright,    1    Hagg.    Ecc.    325j  later  will  did  not  revive  the  dupli- 

Welsh   V.    Philips,    1     Moore   P.    C.  cate    copy    of    the    first    will.      E(C 

299-   Helyar  v.  Helyar,   1   Lee  Ecc.  parte  Hellier,  3  Atk.  798. 
j^  '  4--2  "®  Goodright  v.  Glazier,  4   Burr. 

i4TGoodright  v.  Glazier,  4  Burr.  2512. 
2512;     Burtonshaw    v.     Gilbert.     1  i49  Harvard    v.     Davis,     2     Bmn. 

406. 


304  LAW     OF     WILLS. 

occurring  question  Avas  ended  in  England  by  the  statute  1  Vict, 
c.  26  Sec.  22,  which  provides  in  substance  that  a  will  once 
revoked  can  be  revived  but  by  a  new  codicil  or  re-execution. 
This  statute  has  always  been  held  to  apply  with  equal  force 
to  a  will  revoked  either  by  a  later  will  containing  a  clause  of 
revocation,  or  by  a  later  inconsistent  will.^^*^ 

Where  such  a  statute  is  in  force,  the  revocation  of  a  later 
will  by  a  testator  who  intends  thereby  to  revive  his  earlier 
will,  and  who  so  declares  his  intention,  has  no  effect  to  revive 
his  earlier  will  unless  there  is  a  re-execution  or  re-publica- 
tion as  contemplated  by  the  statute.^^^ 

§273.     Effect   of  revocation   of    later    instrument — American 
rule. 

In  the  United  States,  in  the  absence  of  a  statute  on  this  sub- 
ject, the  decisions  are  by  no  means  uniform.  The  better  line 
of  authority  made  a  distinction  between  the  cases  where  the 
later  will  contained  an  express  revocation  clause,  and  where 
it  was  merely  inconsistent  with  the  earlier  will. 

"There  seems  to  have  been  material  distinction,  and  on 
good  ground,  between  the  state  of  a  former  will  after  second 
one  merely  inconsistent  with  it,  and  its  state  after  a  second 
one  with  a  declaration  expressly  revoking  it.  In  the  first 
case  the  only  chance  for  the  second  to  operate  in  revocation  of 
the  first,  according  to  the  prevalent  theories  of  the  courts,  was 
by  its  coming  to  a  head  as  an  active  will,  which  it  could  do 
only  by  surviving  its  author.  Being  the  last  expression  of 
the  decedent,  and  at  the  same  time  practically  inconsistent 
with  the  prior  one,  the  intent  to  repeal  the  first  by  it  was  to 
be  implied.  In  case,  however,  of  its  being  recalled  by  the  tes- 
tator in  his  lifetime,  it  could  not,  on  the  theory  referred  to, 
be  taken  to  have  had  the  effect  to  do  away  with  its  predeces- 

150  Major    v.    Williams,    3    Curt.  Ecc.  432;  James  v.  Cohen,  3  Cure. 

Ecc.  432 ;   James  v.   Cohen,   3  Curt.  Ecc.  770 ;  Dickinson  v.  Swatman,  30 

Ecc.  770;  Brown  v.  Bro^\^^,  8  El.  &  L.  J.  P.  84;   Wood  v.  Wood,  L.  R. 

Bl.  876;  Dickinson  v.  Swatman,  30  1    P.    309;    Goods    of    Hodgkinson 

L.  J.  P.  84;  Wood  v.  Wood,  L.  R.  (1893),  P.  339;  In  re  Brown,  4  Jur. 

1  P.  309.  N.  S.  244. 

161  Major    V.    Williams,    3    Curt. 


LAW    OF    WILLS. 


305 


sor  Being  cut  off  before  having  its  disposition  of  property 
awlkened  into  life  it  could  have  no  ^^affirmative  operation 
through  its  dispositions  upon  the  estate."  ^^^ 

Where  such  distinction  is  recogiiized,  the  destruction  of  a 
later  will  inconsistent  with  an  earlier  will,  but  containing  no 
clause  of  express  revocation,  revives  the  first  will.^^=^  Where 
the  second  will  contains  a  clause  of  revocation,  it  is  held  m 
numy  jurisdictions  in  the  United  States,  in  accordance  with 
the  distinction  already  given,  that  the  destruction  of  the  sec- 
ond will  does  not  revive  the  first.^^^  But  even  in  states  holding 
the  contrary  view  the  unauthorized  destruction  by  another  than 
testator  of  a  will  containing  a  clause  of  revocation,  does  not 
revive  the  first  will.^^^ 


152  Scott  V.  Fink,  45  Mich.  241, 
quoted  and  followed  in  Cheever  v. 
North,  106  Mich.  390. 

153  Knox  V.  Knox,  95  Ala.  495; 
Peck's  Appeal,  50  Conn.  502  (dis- 
tinguishing James  v.  Marvin,  3 
Conn.  576)  ;  Dawson  v.  Smith,  3 
Houst.  (Del.),  92;  Colvin  v.  War- 
ford,  20  Md.  357  ;  Cheever  v.  North, 
106  Mich.  390;  Johnston's  Will,  69 
Hun,  157;  Lawson  v.  Morrison,  2 
Dall.  (Pa.)  286;  Jones  v.  Murphy, 
8  W.  &  S.  (Pa.)  275;  Flintham  v. 
Bradford,  10  Pa.  St.  82;  McClure 
V.  McClure,  86  Tenn.  173;  Pringle 
V.   McPherson,   2   De   Saus.   524. 

Contra,    Hartwell    v.    Lively,    30 
Ga.   315. 

154  James     v.     Marvin,     3     Conn. 
576;   Barksdale  v.  Hopkins,  23  Ga. 
332;   Scott  v.  Fink,  45  Mich.  241; 
Stevens  v.  Hope,  Mich.,   17   N.  W. 
698;    Bohanon   v.    Walcot,    1    How. 
(Miss.),    336;    Beaumont   v.   Keim, 
50  Mo.  28;   Lane  v.  Hill    (N.  H.), 
(1895),    44    Atl.     393;     Hawes    v.. 
Nicholas,   72   Tex.   481;    Pickens   v. 
Davis,   134  Mass.  252;   Williams  v. 
Williams,    142    Mass.    515;    Marsh 
v.   Marsh,   3   Jones      L.    (N.   Car.), 
77. 


Contra,  Linginfetter  v.  Linginfet- 
ter,  1  Hardin  (Ky.),  127;  Randall 
V.  Beatty,  31  N.  J.  Eq.  643;  Taylor 
v.  Taylor,  2  Nott  &  McC.  (S.  Car.), 
482 ;  Bates  v.  Holman,  3  Hen.  &  M. 
(Va.),  502.  In  these  cases  a  revo- 
cation of  a  later  will  containing  an 
express  clause  of  revocation  re- 
vives  the   entire  will. 

In  Peck's   Appeal,   50   Conn.   562, 
it  was  said  in  an  obiter,  to  be  prob- 
ably the  weight  of  authority  in  the 
United   States,   that  the   revocation 
of    a    will    containing    a    clause    of 
express     revocation,     of     itself     re- 
vived  an   earlier   will.     The   reason 
given  for  this  view  was  that  under 
modern  statutes  a  will  could  not  be 
revoked  by  an  informal  writing,  as 
in  James  v.  Marvin,   3  Conn.   576; 
but   by   no   later   instrument  but   a 
will;    and    an    instrument    executed 
as  a  will,  but  revoked  before  testa- 
tor's  death,   could   not   be   called   a 
will    within    the    meaning    of    the 
statute.      The    court    cited    as    par- 
tially supporting  this  view  Hyde  v. 
Hyde,    3   Chan.   Rep.    155.     Reid  v. 
Borland,  14  Mass.  208 ;  Laughton  v. 
Atkins,   1   Pick.   535. 

155  Day  V.  Day,  2  Gr.  Ch.  (3  N.  J. 
E.),  550. 


306  LAW    OF    WILLS. 

This  holding  rests  on  the  theory  that  upon  the  execution 
in  due  form  of  a  will  containing  a  clause  of  express  revocation 
the  first  will  is  absolutely  and  immediately  revoked.  To  give 
it  validity  by  the  revocation  of  the  second  will  might  be  to  al- 
low the  first  will  to  be  made  of  force  and  effect,  without  the 
execution  and  attestation  required  by  the  Statute  of  Wills. 
As  is  indicated  by  the  note  this  distinction  is  not  recognized 
by  all  the  courts.  In  some  states  it  was  held  that  in  no  class 
of  wills  did  the  revocation  of  the  second  effect  a  revision  of 
the  first;  in  others,  that  in  all  cases  of  wills  a  revivor  might 
be  thus  effected. 

§274.     Effect    of    revocation    of  later    instrument American 

statutes. 

In  the  United  States  this  subject  has  been  to  a  considerable 
extent  modified  by  statutes,  which  may  be  divided  into  two 
general  classes.  The  statutes  of  the  one  class  declare  that  the 
revocation  of  the  second  will  shall  revive  the  first  only  in 
case  it  shall  appear  from  the  terms  of  the  revocation  that  it 
was  the  intention  of  testator  to  revive  it.  Such  statutes  affect 
at  least  the  rule  of  presumptions  arising  from  the  revocation 
of  the  revoking  will,  and  require  evidence  of  testator's  inten- 
tion to  revive  the  first  will,  over  and  above  the  mere  act  of 
revoking  the  second  will.  In  some  states  parol  evidence  is 
not  excluded,  that  is,  the  testator  by  his  mere  declarations  may 
revive  the  first  will.^^^ 

Where  the  statute  expressly  provides  that  the  destruction 
of  the  second  will  shall  revive  the  first  only  when  such  ap- 
pears to  be  testator's  intention  from  the  terms  of  the  revoca- 
tion, the  better  view  is  that  such  intention  does  not  appear 
from  the  mere  fact  that  at  testator's  death  the  second  will 
can  not  be  found.^^'^ 

156  Williams     v.     Williams,     142  is?  Kern  v.  Kern    (Ind.),    (1900), 

Mass.    ,515;    Pickens   v.    Davis,    134  55   N.    E.    1004;    Williams   v.    Wil- 

Mass.    252;     Marsh    v.    Marsh,    30  liams,   142  Mass.   515:    So  McClure 

L.  J.  P.  77.  V.   McClure,  86  Tenn.   173. 


LAW     OF     WILLS. 


307 


In  a  recent  New  York  case  a  statute  of  this  class  was  care- 
fully analyzed.  It  was  held  that  the  clause  providing  for  a 
revivor  in  case  it  so  appeared  by  the  terms  of  the  revocation, 
applied  to  revocation  only  by  an  instrument  in  writing;  and 
that  if  the  will  was  revoked  by  a  later  will  or  codicil,  the 
other  clause  of  the  statute  applied  and  testator  must  duly  re- 
publish his  first  will  in  order  to  revive  it.^''*® 

Another  class  of  statutes  follows  the  statute  of  1st  Victoria 
in  substance,  and  provides  that  the  first  will  in  such  a  case 
can  be  revived  only  by  a  re-execution  of  some  sort,  with  the 
formalities  required  by  the  Wills  Act.  Under  such  statutes 
the  testator  can  not  revive  his  first  will  by  any  declarations, 
no  matter  how  explicit. ■'^^ 

§275.     Conditional  revocation. — In  general. 

As  a  will  may  be  executed  to  take  effect  only  upon  certain 
conditions,  so  an  act  of  revocation  may  be  made  to  take  effect 
only  on  the  performance  of  certain  conditions. 

This  statement  applies  to  revocation  by  act  manifest  upon  the 
instrument,  and  to  revocation  b}'  a  subsequent  will,  codicil,  or 
other  instrument  in  writing;  since  revocation  by  these  methods 
exists  only  when  testator  intended  to  revoke  and  manifested  his 
intention  in  some  manner  indicated  by  the  law.  It  does  not 
apply  to  revocation  by  act  of  the  law,  such  as  revocation  by 
changes  of  testator's  circumstances,  or  revocation  by  alteration 
of  testator's  estate. 

This  doctrine,  known  as  that  of  conditional  revocation  or 
dependent  relative  revocation,^ ^^  is  recognized  in  many  juris- 
dictions, and  may  be  stated  in  this  form.  If  the  revocation  is 
of  a  class  in  which  testator's  intention  to  revoke  is  essential,  and 

158  Stickney's  Will,  101  X.  Y.  42.  In  re  Lones,  108  Cal.  688;  Wolf  v. 
(Accordingly  the  oral  declarations  Bollinger,  62  111.  368;  Stewart  V. 
of  testator  made  to  persons  who  Mulholland,  88  Ky.  38 :  Beaumont 
were  not  attesting  witnesses  can  v.  Keim.  50  Mo.  28 ;  Beaumont 
not  serve  as  a  revivor  of  the   first  ,  Rodes,  29  Gratt.    (Va.),  147. 

will,  no  matter  how  clear  testator's  leo  Eggleston    v.    Speke,    3    Mod 

intention   may   have   been.)  259;  Semmes  V.  Semmes,  7  H.  &  J. 

159  Barker   v.   Bell,   49   Ala.   284;        (Md.),  388. 


308  LAW     OF     WILLS. 

testator's  intention  is  in  fact  conditioned  upon  a  certain  state 
of  fact,  there  is  no  revocation  if  such  state  of  fact  does  not 
exist.i«i 

§276.     Conditional  revocation  by  act  manifest   on  instrument. 

The  doctrine  of  conditional  revocation  applies  where  the 
act  required  by  state  was  done,  but  testator's  intention  to 
revoke  depended  on  the  supposed  existence  of  certain  facts 
which  prove  not  to  have  existed.  Cancellations  and  erasures 
are  often  made  by  testator  for  the  purpose  of  writing  in  other 
M'-ords  to  alter  his  will.  The  modern  rule  is  that  these  altera- 
tions are  invalid  where  the  will  is  not  re-executed  after  it  is 
altered.^  ^'^ 

The  question  is,  What  effect  shall  be  given  the  cancella- 
tion or  erasure  thus  made  by  testator?  Testator  intended  his 
act  of  erasure  to  operate  as  a  partial  revocation  at  least;  but 
only  on  condition  that  the  alterations  made  by  him  shall  stand 
as  his  will.  Accordingly,  even  where  partial  revocation  is  rec- 
ognized, it  is  held  that  a  cancellation,  solely  for  the  purpose 
of  interlineation  or  alteration,  does  not  operate  as  a  revoca- 
tion.^^? So  where  testator  tore  out  and  destroyed  one  page  of 
his  will,  with  intention  to  substitute  another  page  for  the  one 
torn  out,  and  the  substituted  page  failed  because  the  will  was 
not  re-executed  after  the  substitution,  it  was  held  that  the 
page  torn  out  was  not  to  be  regarded  as  revoked,  the  condition 
upon  which  testator  meant  to  revoke  having  failed.^ ®^ 

Where  testator  cancelled  a  part  of  his  will,  in  order  to  sub- 
stitute an  interlineation  which  failed  of  effect,  it  was  held 
that  as  the  revocation  was  conditional,  and  the  condition  failed, 

leiEggleston    v.    Speke,    3    Mod.  P.  79;  L.  R.  3  P.  94;  29  L.  T.  249; 

259;    Onions   v.   Tyrer,    1    P.   Wms.  Hesterherg   v.   Clark,    166   111.    241; 

343;  Goods  of  James,  19  L.  T.  610;  Camp.  v.  Shaw,  163  Til.  144  Aflf.  52 

Burns  v.  Travis,   117  Ind.  44.  111.    App.    241;    Doane   v.    Hadlock, 

"2  See    See.    2,54,   258,   260,    and  42   Me.   72;   Varnon  v.   Varnon,   67 

Chapt.  XV.  Mo.   App.   534. 

163  Goods  of  Nelson,  Ir.  R.  6  Eq.  i64  Varnon    v.    Vamon,    67    Mo. 

569 ;  Brooke  V.  Kent,  3  Moore,  P.  C.  App.  534. 
334;    Goods    of    McCabe,    42    L.    J. 


LAW     OF    WILLS. 

the  intent  to  revoke  the  cancelled  clanses  was  lacking.^  <^^     So 
where  a  part  of  the  will  is  erased  as  a  part  of  an  attempted 
re-execution,   snch  erasure  not  being  done  animo   revocandt, 
does  not  revoke  the  w'AV      Or  where  testator  revokes  his 
will  in  order  to  execute  another  which  fails  of  effect,  the  first 
will  being  conditionally  revoked  is  held  not  to  be  revoked  on 
failure  of  the  condition  ;i«'^   and  this  rule  has  been  enforced    ' 
where  the  later  will  failed  because  it  was  not  duly  executed.|"« 
But  where  the  act  done  upon  the  will  is  intended  as  a  finality 
for  the  time  being,  the  revocation  is  complete,  even  though 
testator  intended  to  execute  another  will  in  the  future,^  and 
performed  the  act  of  revocation  as  a  preliminary  thereto.^^^ 

§277.     Conditional  revocation  by  later  instrument. 

The  principles  of  conditional  revocation  are  as  applicable  to 
revocation  by  a  later  will  as  they  are  to  revocation  by  some 
specified  act  evident  upon  the  mil.  If  the  testator  revoked 
the  prior  will  conditionally  upon  the  existence  of  a  certain 
state  of  facts  or  upon  the  validity  of  a  subsequent  bequest, 

165  Wolf  V.  Bollinger,  62  111.  308.  Sewall   v.  Robbins,   139  Mass.   1G4; 

Contrary  to  the  weight  of  authority  Stickney    v.    Hammond,    138    Mass. 

is   the   view   expressed    in    Wilson's  116;    Wilbourn    v.    Shell,    59    Miss. 

Will    8  Wis    171,  to  the  effect  that  205;    Gardiner   v.    Gardiner,    65    N. 

an     unexplained     alteration     would  H.  230;    8L.  R.  A.  383;    Pringle  v. 

avoid   the   will.  McPherson,   2   Desaus,   524;    Stover 

166 /n  re  Kennett,   2   N.   R.   461;  v.    Kendall,    1    Cold.     (Tenn.)    55/; 

Goods    of    Applebee,    1    Hagg.    143:  Carpenter  v.  Miller,  3  W    Va     174. 

Wilbourn    V.    Shell,    59    Miss.    205;  "s  Scott   v.    Scott,    1    Sw.    &    Ir 

Frear  v.  Williams,  7  Baxt.   (Tenn.),  258;  5  Jur.   (N.  S.),  298;  Goods  of 

ggQ  Middleton,  3  Sw.  &  Tr.  583;   34  L. 

leiGoods    of    Cockayne,       Deane,  J.  P.  16;  10  Jur.  (N.  S.),  1109;  11 

Ecc.  R.  177;  2  Jur.   (N.  S.)   454;  4  L.   T.   684. 

W    R    555 ;  Powell  v.  Powell,  L.  R.  !«»  Dickinson  v.   Swatman,  4   bw. 

1     P    209  •     35   L    J.   P.    100 ;     14  &  Tr.  205 ;  Goods  of  Mitehelson,  32 

L   t'sOO;  Dickinson  V.  Swatman,  4  L.    J.    P.    202;     Olmsted's    Estate, 

S   &T.  205;  Dancer  v.Crabb,  42  L.  122      Cal.      224;      Youse     v.      For- 

J       P       53-      L      R      3      P.      98;  man,    5    Bush,     (Ky.)     337;    Town- 

08    l't     914-     Doe   v.    Evans,    10  send  v.  Howard.  86  Me.  285 ;  Brown 

Ad    &  EI    228;   Dunham  v.  Averill,  v.    Thorndike,     15     Pick.     (Mass.), 

45"conn.  61;   Mendenhall's  Appeal,  .388;   Banks  v.  Banks,  65  Mo    4J3 2 ; 

124  Pa    St    387-   23  W.  N.  C.  379;  Skipwith   v.   Cabell,    19   Gratt.    <58. 


310  LAW    OF    V/^rLLS. 

such  revocation  is  of  no  effect  unless  the  conditions  are  com- 
plied with.^''^*^  Thus  where  a  testator  had  executed  two  wills, 
and  by  codicil  revoked  the  first,  and  declared  the  second  to 
be  his  last  will  if  he  should  die  on  or  after  a  given  date,  but 
if  he  should  die  before  such  date  his  second  will  was  revoked, 
and  his  first  executed  will  was  to  be  his  last  will  and  testa- 
ment, full  force  was  given  to  such  codicil.^^^ 

The  difficulties  in  this  branch  of  the  law  lie  in  determining 
what  forms  of  expression  indicate  a  conditional  revocation, 
and  what  an  absolute  one;  and  also  in  determining  what  evi- 
dence may  be  adduced  to  show  this  intention. 

If  the  second  will  is  invalid  either  by  reason  of  defective 
execution,  or  through  lack  of  capacity  of  testator  to  make  a 
valid  will,  the  revocation  clause  is  also  invalid,  and  the  first 
will  is  not  affected  thereby  in  any  way.^^^  And  of  course  an 
invalid  codicil  has  no  effect  to  revoke  any  part  of  the  will 
to  which  it  is  meant  to  be  appended.^  "^ 

Testator  may  revoke  his  prior  will  by  a  later  one,  which 
contains  a  clause  of  absolute  revocation  and  is  properly  ex- 
ecuted, but  which  by  reason  of  something  outside  the  will  is 
ineffectual  to  pass  the  property  sought  to  be  devised.  This 
differs  from  the  cases  where  the  second  instrument  contains 
a  revoking  clause  and  nothing  more,  for  in  the  cases  under 
consideration  the  instrument  contains  a  revoking  clause  and 
a  dispositive  portion  which  fails  of  effect.  The  question  is 
whether  the  revoking  clause  is  conditioned  upon  the  validity 
of  the  dispositive  part  or  not.  The  general  rule  upon  this 
point  is  that  "a  second  will  inconsistent  with  the  first,  perfect 

170  See  ca-ses  cited  in  this  section.  St.;   12  Atl.  1026;  Price  v.  Maxwell, 

171  Hamilton's  Estate,  74  Pa.  St.  28  Pa.  St.  23 ;  Rudy  v.  Ulrich,  69 
69;  Bradish  v.  McClelland,  100  Pa.  Pa.  St.  177;  Reese  v.  Ct.  of  Probate, 
St.  607.  9   H.    I.   434;    /,j   re  Noyes,   61    Vt. 

172  Caeman  v.  Van  Harke,  33  14;  Domer  v.  Seeds,  28  W.  Va.,  113; 
Kan.   333;    Breathitt  v.   Whittaker,  In  re  Fisher.  4  Wis.  2.54. 

8     B.    Mon.    (Ky.)    530;     Hollings-  "3  Kirke  v.  Kirke,  4  Russ.   43.5; 

head  v.   Sturgis,  21   La.   Ann.   450;  Boylan    v.    Meeker,    28    N.     J.    L. 

Colvin    V.    Warford,    20    Md.    357;  274;    Austin    v.    Oakes,    117    N.    Y. 

Reid   V.     Borland,     14    Mass.     208;  577;   Delafield  v.   Parish,   25  N.   Y. 

Laughton      v.      Atkins,       1       Pick.  9;    Heise  v.   Heise,   31   Pa.   St.  246. 
(Mass.),  535;   Jacoby's  Estate,  Pa. 


LAW     OF     WILLS. 


311 


in  form  and  execution,  but  incapable  of  operating  as  a^  will 
on  account  of  some  circumstance  deJiors  the  instrument,"  re- 
vokes the  first  instrument,  where  the  second  contains  a  clause 
of  express  revocation.^  ^'* 

The  revoking  instrument  may  recite  certain  facts  as  the 
reason  for  the  revocation.  If  these  facts  are  not  true  the  ques- 
tion arises  as  to  the  effect  upon  the  clause  of  revocation.  The 
general  rule  is  that  if  the  facts  are  so  recited  that  tlie  revoca- 
tion is  based  entirely  upon  them  and  conditioned  upon  their 
existence,  the  prior  will  is  not  revoked,  if  the  facts  recited  are 
not  true.^^^  Thus  in  an  early  and  leading  case  a  gift  to  cer- 
tain grandchildren  was  revoked,  "they  being  all  dead,"  though 
in  point  of  fact  they  were  living.  It  was  held  that  the  revoca- 
tion clause  did  not  take  effect.^ ^^ 

A  possible  exception  to  this  rule  exists  where  the  fact  is  one 
peculiarly  within  the  knowledge  of  testator,  and  within  his 
power  to  accomplish.     Thus,  where  testator  revoked  a  bequest 


174  Laughton  v.  Atkins,  1  Pick. 
(Mass.),  535.  To  the  same  effect 
are  James  v.  Marvin,  3  Conn.  576; 
Barksdale  v.  Hopkins,  23  Ga.  332; 
Burns  v.  Travis,  117  Ind.  44;  Col- 
vin,  V.  Warford,  20  Md.  357;  Vin- 
ing  V.  Hall,  40  Miss.  83;  Hoffner's 
Estate,  161  Pa.  St.  331;  Price  v. 
Maxwell,  28  Pa.  St.  23;  Boudinot  v. 
Bradford,  2  Dall.  266;  Carpenter 
v.  Miller,  3  W.  Va.  174. 

The  case  of  James  v.  Marvin  is 
treated  in  Connecticut  as  being  no 
longer  a  precedent,  and  the  doctrine 
just  given  in  the  text  is  attacked  in 
a  recent  case. 

Security  Co.  v.  Snow,  70  Conn. 
288:  see  also  Peck's  Appeal,  50 
Conn.  562.  In  the  case  of  Security 
Co.  V.  Snow,  supra,  the  codicil  ex- 
pressly revoked  a  former  gift  to 
A  and  bequeathed  such  gift  to  B 
in  trust  for  A,  with  discretionary 
power  to  B;  and  on  A's  death  to 
A's  heirs.  Under  the  Connecticut 
law  the  limitation  to  A's  heirs  was 


void    for    remoteness,    and    on    B's 
death,  the  discretion  being  personal, 
no  trustee  could  be  appointed  to  act. 
It    was    held    that    the    revocation 
clause  of  the  codicil  must  be  treated 
as  conditional  upon  the  validity  of 
its    dispositive    provisions;    and    on 
their  failure  in  part,  the  gift  passed 
to  A  absolutely.     This  view  of  the 
law  treats  the  codicil  in  effect  as  if 
it  contained  no  revoking  clause,  but 
as    if     it    revoked    by     implication 
merely;  and  it  is  subject  to  the  ob- 
jection  that  it   ignores   the  express 
wishes    of     the     testator     that    the 
gift  should  be  revoked,  and  enforces 
his   conjectured  wish  that   the  will 
should  stand  in  so  far  as  the  codicil 
failed  of  effect. 

175  Campbell  v.  French,  3  Ves.  Jr. 
321 ;  Doe  v.  Evans,  10  Add.  &  El. 
228;  Mendinhall's  Appeal,  124  Pa. 
St.  387. 

i7fi  Campbell  v.  French,  3  Ves. 
.Tr.   321. 


312  LAW    OF    WILLS. 

on  the  ground  that  he  had  'given'  the  beneficiary  certain  prop- 
erty, which  had  in  fact  been  transferred,  but  as  a  sale,  and  not 
as  a  gift;^"  or  where  testator  revoked  a  legacy  because  he 
had  provided  the  legatees  with  a  permanent  home,  when  in 
fact  he  had  not  done  so,  it  was  held  that  in  each  case  the  revo- 
cation clause  took  effect,  the  matter  being  one  over  which 
testator  had  full  control,  and  of  which  he  had  full  knowl- 
edge.^'^^ 

Where  the  revoking  clause  is  based  upon  a  mistake  of  law 
a^  to  the  legal  effect  of  the  will,  the  courts  seem  disposed  to 
treat  this  as  a  conditional  revocation,  ineffective  if  condi- 
tioned on  the  correctness  of  a  mistaken  belief.^ ^'^  But  where 
the  facts  recited  are  not  the  conditions  upon  which  the  will 
is  revoked,  but  merely  accompanying  circumstances,  their  fals- 
ity can  not  affect  the  revocation.  If  the  facts  recited  are 
clearly  such  as  could  not  cause  the  revocation,  or  if  it  ap- 
peared that  the  testator  was  content  to  act  upon  his  under- 
standing of  them  without  regard  to  the  ultimate  fact  of  their 
truth  or  falsity,  the  revocation  will  take  effect  in  any  event.^^^ 

Where  the  testator  revoked  a  legacy  to  certain  beneficiary, 
reciting  his  reason  as  ''I  do  not  know  whether  any  of  them  are 
alive  and  if  they  are  well  provided  for,'  the  revocation  was 
held  to  be  an  absolute  one.^^^ 

Where  a  testator  had  devised  a  piece  of  land  to  a  son,  and 
in  a  codicil  recited  that  he  had  sold  such  land,  and  revoked 
the  devise  to  such  son,  it  was  held  that  the  revocation  was 
absolute  and  operated,  though  testator  had  not  in  fact  sold 
the  land.182 

If  the  clause  of  revocation  is  absolute  in  form,  the  fact  that 
it  was  caused  by  a  mistake  of  testator  upon  a  material  fact 

177  Mendinhall's  Appeal,  124  Pa.  Lloyd.  3  Atk.  551;  Giddings  v. 
St.   387.  Giddings:     65    Conn.     149;     Morde- 

178  Hayes  v.  Hayes,  21  N.  J.  Eq.  cai  v.  Boylan,  6  Jones  Eq.  (N. 
265.  Car),    365;    Skipwith   v.   Cabell,    19 

179  Barclay  v.   Maskelyne,   4   Jur.  Gratt.    (Va.),  785. 

N.  S.  292.  181  Attorney   General   v.   Ward,    3 

180  Campbell    v.    French,    3    Ves.       Ves.  Jr.  327. 

Jr.    321;    Doe   v.   Evans,    10   Ad.    &  i82  Giddings      v.      Giddings,      65 

Ell.      228;      Attorney     General      v.       Conn.  149. 


313 

LAW    OF    WILLS. 

does  not  prevent  the  revocation  from  taking  effect."=  If  this 
t'e  not  the  la.,  a  formal  written  revocation  executed  m  dne 
form  by  a  competent  testator  conld  be  overthrow  by  parol, 
clearly  "a  most  nndesirable  state  of  the  law. 

§278.     Kevocatlon  hy   alteration  of  estate.-At  common    law 
and  equity. 

At  common  law  a  will  devising  real  property  was  revoked 
entirely  by  an  alteration  in  testator's  estate  in  all  the  realty 
devised,  and  pro  tanto  by  an  alteration  of  testator's  estate  rn 
part  of  the  real  property  devised.'"  If  the  en  rre  rea ly 
devised  by  a  will  which  devised  only  realty,  were  ^bsequently 
convft'ed.  the  will  was  entirely  revoked  thereby 

It"  not  necessary  that  the  deed  conveying  all  of  testators 
realty  be  recorded  in  order  to  operate  as  a  revocation  of  tes- 

'^WherTall  of  testator's  realty  is  conveyed  after  the  execu- 
tion of  a  will  devising  only  real  estate,  the  revocation  of  the 
will  is  so  complete  that  the  deed  may  be  pleaded  as  a  revo- 
cation at  probate."'  ,  i  ■  j  ,i;j  „„t 
A  conveyance  of  a  part  of  the  property  devised  did  no 
however,  work  a  total  revocation,  but  only  revoked  the  will 
as  far  as  the  property  conveyed  was  concerned.'-     A  will  dis- 

,.,  Dunham   V.   -^^vevill.  4.5  Conn.  246;    Mullock    ■••/»""<■'■%!'•* 

„      ,         .,  o    R     T    c|<l-  S.    108-.    Peasaits  Appeal,  77    Fa. 

'^:J^>^.:T^oIL  Zl  S.  3..;    Bailie.,  App.   14  Pa.  S. 

Skipwitl,  V.Cabell.  19  Gratt.(Va.),  451.^^^^^    ^^    ^^^^^    ^^   ^^     ^^^ 

''L  GooOtitle  V.  Otway.^  2  H.  Bl.  Bowen  v.  .To„nso„    6  Ind.  UO;  Co.- 

TT  If    A     Q   Voc     Tr  hm  V.  Smith.  89  Va.  Zo». 

5,6,    Cave  v.   HoHo.<l.    3   Ve^.    J-.  '"P^                 ^.    j,,,,;^,,    ^,  y,.  258. 

65.3:   Taylor  v.  K  1  y,  31  A  a.  69  ^^^           1^   ^^^^    ^^  ^^    ^^^ 

Pickering  v.  Langdon,  II  ivie.  tio,  ft- 

Carter  v  Thomas!  4  Me.  34,  ;  Wells  "-Taylor  v.  ,«,bs   31    Ala.        , 

V     Wells,    35    Miss.    638;    Gilbert  Swa.ls    v.     Swa,  s,    08    InJ.    511.^ 

.    T,     1      fxr    v\     'S3'>-  Warren    v.     Taylor.     5b     lo.     lo-, 

^    T      \     Tn    2  RIO-  Don-  Hawes  v.   Humphrey,   9   Pick.   350; 

Borden  v    Borden.  2  B    I.  94     Do  Edminster.  9  Pick,   (note), 

ohoo  V.  Lea^l   S^"    '^^^  "^j;^    .  35G  /  Webster  v.  Webster,  105  Mass. 

Bowen  v.  Johnson  6  Ind   110    Terry  ^^^^^^^,,,  Appeal,  77  Pa.  St. 

V.  Edniinst.r,  0  Pick,     not^) ,       6  5  8     P^^^_^^^^           P^^^     ^^    ^^     ^^ 

Hawes  v.   Humphrey,  9   Pick   350 ,  ^  ^^^^^^^^^  3^  ^  ^^^. 
Cozzens    v.    Jamison,    12    Mo.    App. 

252;    Skerrett    v.    Burd,    1    Whart.  21. 


314  LAW     OF     WILLS. 

posing  of  realty  and  personalty  is  not  revoked  by  a  convey- 
ance of  all  the  realty.^  ^^ 

This  rule  at  common  law  rested  upon  the  principle  that 
testator  by  a  devise  of  his  property  could  dispose  only  of  the 
real  property  then  owned  by  him ;  while  after-acquired  prop- 
erty could  not  be  devised,  but  passed  to  the  heirs.  As  we  have 
seen,  this  was  the  result  of  the  common  law  theories  of 
seisin.^  ^"  PTeiice,  if  testator  after  making  his  will  altered  his 
estate  in  such  a  way  as  to  divest  himself  of  the  seisin,  even 
for  a  short  time,  his  new  estate  in  the  .property  was  looked 
upon  as  an  after-acquired  estate,  and  could  not  pass  by  will. 
To  make  a  valid  devise,  testator  had  to  be  seized  at  his  death 
of  the  same  estate  that  he  was  seized  of  at  the  date  of  the 
will.^^^  Thus  a  tax  sale  operates  as  a  revocation.^  ^^  So  a 
conveyance  of  realty  in  fee,  reserving  a  ground  rent,  operates 
as  a  revocation  as  to  such  realty,  and  the  ground-rent  does  not 
pass  by  such  will.^^^  Thus  the  renewal  of  a  lease  to  testator 
after  his  making  his  will  revoked  it  as  to  such  land,^^'* 

If  the  testator  parted  with  his  land  by  an  instrument, 
whereby  title  instantly  revested  in  him,  the  will  was  re- 
voked,^ ^^  or  by  an  instrument  which  conveys  the  legal  title, 
though  equity  might  set  it  aside,  or  hold  the  grantee  as  a 
trustee  for  the  grantor  on  account  of  fraud. ^^^  So  a  convey- 
ance of  the  equitable  estate,  testator  retaining  the  legal  title, 
as  by  a  valid  contract  to  convey  real  estate,  enforceable  in 
equity,  revoked  a  prior  devise  of  such  real  estate,  even  where 


189  Kent  V.  Mahaffey,  iO  O.  S.  204.  i93  Skerrett    v.    Burd,    1    Whart. 

190  See  Sec.  142.  (Pa.),    246;    Mullock   v.    Souder,    5 


191  Marwood  v.  Turner,  3  P.  Wms 
103 ;  Knollys  v.  Alcock,  5  Ves 
648;  Vawser  v.  Jeffrey,  16  Ves.  Jr 
519;  Bennett  v.  Tankerville,  19  Ves 
171 ;  Parker  v.  Lamb,  2  Vern.  495 
Walton  V.  Walton,  7  Johns.  Ch 
258;  Adams  v.  Winne,  7  Paige,  97 
Skerrett  v.  Burd,  1  Whart.  246; 
Borden  v.  Borden,  2  R.  I.  94.  1 ;   Hick  v.  Mors,  Ambl.  215. 

192  Borden  v.  Borden,  2  R.  I.  94. 


W.  &  S.   (Pa.),  198. 

194  Marwood  v.  Turner,  3  P.  Wms. 
163. 

195  Cave    V.    Holford,    3    Ves.    Jr. 
653 

Contra,   Woolery   v.    Woolery,   48 
Ind.   523. 

196  Simpson    V.    Walker,    5    Sim. 


315 

LAW    OF    WILLS. 


such  contract  was  afterwards  rescinded.-^     However,  convey- 

a^c  s    n  bankruptcy  or  to  pay  testator's  debts    were  no.  held 
revoke  his  will  Is  to  any  property  that  niightrema.n  after 

the  purpose  of  such  conveyance  had  been  accomplished/-  and 
vl  ere  testator  had  an  equitable  estate  in  the  property  dev.sed 

:hich  he  retained  unaltered,  the  change  of  legal  title  from  one 

trustee  to  another  did  not  revoke  the  will^_ 

So  where  testator  retained  a  part  of  his  estate  m  the  real 
property  unaltered,  the  will  was  not  entirely  revoked  as  to 
such  property  by  the  creation  of  a  particular  estate  m  such 
property,' asVere  testator  having  devised  a  fee  in  ceHain 
realtv  afterward  granted  a  life  estate  therein.  The  will  as 
to  such  property  was  still  good  to  pass  the  reversion,  though  o. 
course  it  co'uld  not  aifect  the  life  interest.-  So  a  ease  for 
years  did  not  operate  as  a  revocation  of  a  devise  of  the  realty 

^'T^l^rrtition  was  not  such  alteration  of  estate  as  revoked  a 
devise  of  testator's  estate  therein  prior  to  partition.  An  in- 

effective attempt  to  execute  a  conveyance  has  never  been  held 
to  amount  to  a  revocation;-^  and  still  less  has  a  change  m 
the  value  of  testator's  property,  the  title  remaining  un- 
chano-ed;-^  nor  does  a  sale  of  a  part  of  the  realty  devised  and 
the  incurring  of  debte  to  such  an  extent  that  the  residue  of  the 
realty  must^be  sold,  of  itself  operate  as  a  revocation  of  the 

will.^^"^ 

However,  it   was    said    in    an   early    case    that   where   tes- 

.9T  Mayer  v.  Gowland,  Dick.  563;  -o  Parker  v.  Lamb    2  Vern.  495^ 

Knollys  v.   Alcock,   7   Ves.  Jr.   558 ;  ==-  Zimmerman  v.  Zimmerman,  23 

Curre  v.  Bo^vTer,  5  Beav.  6;  Dono-  Pa.  St.  3<5. 

hoo    V.    Lea,    1    Swan    (31    Tenn.)  202  Luther   v.   Kidby,   3   P.   Wms. 

Ill  169n;    Attorney    General    v.    Vigor, 

i98Vernon  v.  Jones,  2  Freem.  117;  8  Ves.  Jr.  281. 

Temple  v.  Chandos,  3  Ves.  Jr.  C85 ;  ^o^  Bennett  v.  Gaddis,  79  Ind^347. 

i!                     pv^.r^nn     UVes    Jr  204  Webster  V.  Webster,  105  Mass. 
Charman   v.    Charman,    l*    ves.    ui. 

580;     Jones   v.    Hartley,    2    Whart.  538;  Verdier  v.  Verdier,  8  Rich.   (S. 

iVa  )     103  Car.),    io5. 

lo'o  Parsons    v.    Freeman,    3    Atk.  205  Wogan   v.    Small,    H    S-   &   R- 

749;    Seaman    v.    Woods,    24    Beav.  141;    Marshall  v.   Marshall,   11   Pa. 


372. 


St.  430. 


316  LAW     OF    WILLS. 

tator  had  conveyed  so  much  realty  as  to  make  it  impossible 
to  execute  the  provisions  of  the  will,  it  would  operate  as  a 
revocation  of  the  entire  will.^"^ 

A  testament  bequeathing  personal  property  was  not  revoked 
by  any  subsequent  alteration  of  testator's  estate  except  in  so 
far  as  the  property  bequeathed  did  not  belong  to  testator  at 
his  death.  Of  course,  property  specifically  bequeathed  passed 
by  testament  only  if  testator  owned  it  at  his  death  p*^^  but  in- 
asmuch as  after-acquired  personalty  might  pass  by  t-estament, 
the  transfer  of  testator's  entire  personal  estate  after  the  ex- 
ecution of  his  testament  did  not  revoke  it.^^^ 


§279.     Revocation  by  alteration  of  estate Modem  statutes. 

The  subject  of  revocation  by  alteration  of  estate  is  prac- 
tically obsolete  at  modem  law.  Nearly  all  the  jurisdictions 
in  which  common  law  is  in  force  have  passed  statutes  to  the 
effect  that  no  alteration  in  the  estate  of  testator  in  property 
devised  or  bequeathed  shall  effect  a  revocation  of  his  will  as  to 
such,  unless  he  is  whollj^  divested  of  his  interest  therein,  or 
unless  in  the  instrument  by  which  such  alteration  is  made  he 
declares  his  intention  that  it  shall  operate  as  a  revocation  of 
such  previous  devise.^^^ 

Under  these  statutes  a  conveyance  of  land  in  trust,  so 
worded  that  the  trust,  as  to  part,  was  not  declared,  and  ac- 
cordingly was  a  resulting  trust  for  testator,  did  not  revoke  a 
previous  devise  of  such  land,  further  than  as  far  as  testator 
had  ceased  to  oa^ti  the  same  at  his  death,  but  the  will  took 
effect  upon  the  resulting  trust  r^*^  nor  does  a  conveyance  in 

206  Cooper's  Estate,  4  Pa.   St.  88.  Paine  v.  Forsaith,  86  Me.  357 ;  Coz- 

207  See    Sec.    135.  zens  v.  Jamison,   12  Mo.  App.  452; 

208  See   Sec.    141.  Kent    v.    Mahaffey,    10    0.    S.    204; 

209  Slaughter  v.  Stephens,  81  Ala.  Brush  v.  Brush,  11  Ohio,  287;  For- 
418;  Welsh  v.  Powndes,  36  Ala.  ney's  Estate,  161  Pa.  St.  209; 
668 ;  Powell  v.  Powell,  30  Ala.  697 ;  Maul's  Estate,  186  Pa.  St.  477 ; 
Tillman's  Estate, —Cal.  — ;  31  Pac.  Fuller's  Estate,  71  Vt.  73;  42  Atl. 
563;  Giddings  v.  Giddings,  65  Conn.  981. 

149;   Swails  v.  Swails,  98  Ind.  511;  210  Brush  v.   Brush,   11   O.   287. 

Belshaw  v.  Clitwood,  141  Ind.  377; 


LAW    OF    WILLS.  317 

trust  for  the  devisee  effect  a  revocation.^^^  And  a  contract 
by  testator,  made  after  the  execution  of  his  will,  to  sell  cer- 
tain realty  devised  by  such  will,  does  not  of  itself  revoke  such 
win.212 

A  contract  to  sell  land  followed  by  a  change  of  possession, 
and  part  payment  did  not  of  itself  revoke  the  devise.  Ac- 
cordingly, when  the  contract  of  sale  was  rescinded  after  tes- 
tator's death,  the  realty  passed  by  will.^^^  ISTor  does  a  sale 
of  realty  revoke  the  will  by  which  it  is  devised,  where  part 
of  the  purchase  price  remains  unpaid,  unless  the  intention  to 
revoke  appears  from  an  instrument  in  writing.^^'*  And  where 
an  oral  contract  for  land  has  been  folloAved  by  change  of  pos- 
session, such  facts  afford  no  ground  for  treating  the  will  as 
revoked,  though  they  may  be  the  basis  for  an  action  against 
the  devisees  to  obtain  title  to  the  realty.^^^ 

Where  testator  by  will  created  a  trust  for  controlling  a  news- 
paper which  he  owned,  together  with  the  rest  of  his  estate, 
the  sale  of  the  newspaper  did  not  effect  a  revocation  of  the 
will.^^'^  And  a  statement  by  one  who  was  about  to  enter  a 
home  for  the  aged  that  he  had  no  property,  together  with  a 
contract  on  his  part  to  transfer  to  tlie  home  any  property  that 
he  should  subsequently  acquire,  has  no  effect  as  a  revocation 
of  a  will  previously  made  by  such  person.^^'''  And  where  the 
will  is  intended  to  pass  after-acquired  property,  and  does  so 
under  the  law  in  force,  a  subsequent  conveyance  of  testator's 
entire  property  by  a  trust  deed  reserving  the  power  of  revok- 
ing the  trust,  is  of  itself  no  revocation  of  the  will;^^^  and  a 
receipt  given  by  a  son  and  devisee  of  testator  to  testator  for 
money  advanced  on  his  share  under  the  will,  does  not  of  itself 
effect  a  revocation  of  the  will.^^^ 

211  Brush  V.  Brush,  11  Ohio,  287;  Wright  v.  Minshall,  72  III.  584; 
Clingan  v.  Micheltree  31  Pa.  St.  Lefebrve's  Estate,  100  Wis.  192. 
25.  215  James  v.  Sutton,  36  Neb.  393. 

212  Hall  V.  Bray,  Coxe  (N.  J.),  216  Forney's  Estate,  161  Pa.  St. 
212;     Lefebrve's    Estate,    100    Wis.  209. 

192.  217  Maul's  Estate,  186  Pa.  St.  477. 

213  Fuller's  Estate,  71  Vt.  73;.  218  Morey  v.  Sohier,  63  N.  H. 
42  Atl.  981.  507. 

214  Slaughter  v.  Stephens,  81  Ala.  219  Burnham  v.  Comfort,  108  N. 
418;  Powell  v.  Powell,  30  Ala.  697;  Y.  533;   37  Hun,  316. 

Welsh    V.    Powndes,    36    Ala.    668 : 


318  LAW    OF    WILLS. 

Under  these  statutes  an  invalid  deed  does  not  effect  a  revoca- 
tion of  a  prior  will,^^^  unless  (under  some  statutes)  it  further 
manifests  a  clear  intention  to  revoke  the  will  absolutely.  A 
mortgage  does  not  operate  as  a  revocation,^^^  even  if  it  is  a 
mortgage  to  the  devisee.^^^ 

The  distinction  has  been  suggested  that  a  deed,  executed  by 
one  who  is  a  competent  testator,  with  intent  to  revoke  his  will 
in  whole  or  in  part,  operates  as  a  revocation  even  if  it  fails 
as  a  deed  for  some  defect  in  form ;  but  if  made  by  one  who  is 
incompetent,  mentally,  or  who  is  induced  to  execute  the  deed 
by  reason  of  fraud  or  undue  influence,  it  does  not  operate  as 
a  revocation.^^^ 

But  even  under  modern  statutes  a  conveyance  of  the  entire 
estate  of  testator  in  the  property  devised  acts  as  a  revocation 
of  a  will  previously  executed,  as  far  as  specific  bequests  and  de- 
vises given  by  such  will  are  concerned.  Still  some  authorities 
hold,  however,  that  even  a  deed  of  testator's  entire  property 
can  not  act  as  a  revocation  of  a  will  previously  executed,  so  as  to 
prevent  probate,  as  property  rights  can  not  be  finally  determined 
in  a  proceeding  to  probate  the  will.^^^ 

§280.     Revocation  by  change  of  circumstances. — In  general. 

Both  at  common  law,  and  under  modern  statutes,  certain 
specified  changes  in  the  status,  or  in  the  family  relations  of 
testator,  or  testatrix,  revoked  any  will  executed  before  such 
change.  The  changes,  which  effected  revocation,  as  will  be 
seen  later,  were  specifically  enumerated  at  the  common  law  or 
in  the  statutes,  and  no  others  can  have  this  effect. 

Occasionally  it  has  been  said  in  obiter  dicta,  that  any  change 
in  circumstances  which  creates  new  moral  duties  operates  as  a 
revocation.^^^ 

220  Bennett  v.  Gaddis,  79  Ind.  347.  224  Tillman's   Estate,  —  Cal.   — ; 

221  Stiibbs  V.  Houston,  33  Ala.  31  Pac.  563;  James  v.  Sutton,  36 
555;  McTaggart  v.  Thompson,  14  Neb.  393;  Morey  v.  Sohier,  63  N. 
Pa.  St.  149.  H.   507. 

222  Baxter    v.    Dyer,    5    Ves.    Jr.  225  Morgan  v.  Ireland,  1  Ida.  7.S6; 
656;    McTaggart    v.    Thompson,    14       Young's  Appeal,   39   Pa.   St.    11."). 
Pa.  St.  149. 

223  Graham    v.    Burch,    47    Minn. 
171. 


LAW    OF     WILLS. 


319 


In  its  literal  form  this  doctrine  would  evidently  be  so  far- 
reaching  as  to  apply  to  most  wills  which  had  been  executed 
any  length  of  time.  The  cases  in  which  it  appears  as  an 
obiter  can  all  be  reduced  to  one  of  the  well-defined  classes  to 
be  given.  But  the  actual  decisions  have  never  gone  to  this  ex- 
tent. On  the  contrary,  they  recognize  specific  sets  of  changes 
in  circumstances  which  effect  a  revocation  of  the  will,  and  de- 
,cline  to  recognize  any  others.^-*^ 

The  theory  underlying  the  doctrine  of  revocation  by  change 
of  circumstances  was  originally  that  the  testator  must  be  pre- 
sumed, in  view  of  the  change,  to  have  desired  a  different  dis- 
position of  his  property  from  that  indicated  in  his  will.  While 
this  was  the  theory,  the  rules  of  revocation  were  absolute,  and 
were  not  changed  in  cases  where  it  could  be  shown  affirma- 
tively that  the  testator  did  not  wish  or  intend  the  revoca- 
tion.227 

§281.     Effect   of  marriage   on   will   of   husband. — Common   law 
and  statute. 

At  the  common  law  the  will  of  a  man  was  not  revoked  by 
his  subsequent  marriage  alone,  without  birth  of  children. 
The  reason  generally  given  for  this  rule  was  that  as  the 
wife  could  not,  under  the  laws  of  descent,  inherit  from  the 
husband,  she  would  not  be  benefited  by  the  revocation  of  the 
will;  and  there  was  no  reason  for  making  the  marriage  act 
as  a  revocation  of  the  will  for  the  benefit  of  the  collateral 
heirs  of  the  husband. 

This  being  the  accepted  reason  for  the  rule,  the  modern 
statutes  of  descent  which  do  not  in  terms  deal  with  wills,  but 
which  provide  that  if  a  husband  dies  intestate,  and  without 
issue,  the  wife  shall  inherit  part  or  all  of  his  property,  pre- 
sent an  interesting  question.     Such  statutes  destroy  the  reason 

226  See  Sec.  285.  as  it  exists  if  this  can  be  proved,  or 

227  Brown  v.  Clark,  77  N.  Y.  369;       as  the  Law  presumes  it  to  be  in  the 
Hale  V.  Hale,  90  Va.  728.  absence  of  proof,  still  finds  expres- 

The   old    theory    that   the   revoca-       sion  in  some  cases.     Miller  v.  Phil- 
tion  rests  upon  testator's  intention       lips,  9  R.  I.  141. 


320  LAW     OF    WILLS. 

generally  given  for  the  common  law  rule.  Do  tliey  destroy 
the  rule?  Some  jurisdictions  hold  that  they  do.  Where  the 
testator  dies  without  issue,  such  courts  hold  that  a  will  ex- 
ecuted prior  to  his  marriage  is  revoked ;  but  where  testator 
has  issue  by  a  prior  marriage,  the  will  is  not  revoked,  as  in 
no  case  would  the  widow  be  benefitted  by  its  revocation.^^^ 

In  other  states  it  is  held  that  such  a  statute  has  no  effect  of 
any  sort  upon  the  law  of  wills,  and  that  marriage  alone  does 
not  revoke  the  will  of  the  man.^-''  In  some  states  it  is  espe- 
cially provided  by  statute  that  a  will  is  revoked  by  the  sub- 
sequent marriage  of  testator.  Some  of  these  statutes  provide 
that  an  exception  shall  exist  if  such  will  was  expressly  made 
in  contemplation  of  marriage.^^^ 

Where  the  statute  contains  no  exception,  the  fact  that  the 
will  was  made  in  contemplation  of  marriage  does  not  prevent 
such  marriage  from  revoking  it.^^^ 

These  statutes  are  constitutional,  even  where  the  constitu- 
tional requirement  that  each  statute  must  be  upon  one  subject 
clearly  expressed  in  its  title,  is  held  mandatory,  and  the  statute 
is  called  a  statute  of  descent.^^^  And  where  such  statute  is 
in  force,  the  fact  that  after  the  marriage  the  husband  and 
wife  separated  under  an  agreement  does  not  prevent  revoca- 
tion of  the  will  by  the  marriage.^^^  Such  statutes  are  usually 
so  worded  as  to  apply  only  where  the  marriage  was  contracted 


228  Sherrer  v.  Brown,  21  Colo.  481,  Ellis  v.  Darden,  86  Ga.  368;  Hud 
affirming  5  Colo.  App.  255;  Tyler  nail  v.  Ham,  172  111.  76;  183  111 
V.  Tyler,  19  111.  151;  American  486;  Sloniger  v.  Sloniger,  161  111 
Board  v.  Nelson,  72  111.  564;  Dur-  270;  Crum  v.  Sawyer,  132  111.  443 
yea  v.  Duryea,  85  111.  41 ;  Swan  v.  Biggerstaff  v.  Biggerstaff,  95  Ky 
Hammond,  138  Mass.  45;  Garrett  v.  154;  Ransom  v.  Connelly,  93  Ky 
Dabney,  27  Miss.   335.  63;  Stewart  v.  Powell,  90  Ky.  511 

229  Goodsell's  Appeal,  55  Conn.  Swan  v.  Sayles,  165  Mass.  177 
171;  Bowers  v.  Bowers,  53  Ind.  Ingersoll  v.  Hopkins,  170  Mass 
430 ;  Hulett's  Estate,  66  Minn.  327 ;  401 ;  49  N.  E.  623 ;  40  L.  R.  A 
34   L.   R.   A.    384;    Hoitt  v.   Hoitt,  191. 

63   N.   H.   475;    56   Am.   Rep.   530;  231  Pransen's   Appeal,   26   Pa.   St, 

Mundy    v.    Mundy,    15    Ohio    C.    C.  202;    Walker    v.    Hall,    34    Pa.    St, 

155.  4S3. 

230  Corker  v.  Corker,  87  Cal.  643;  2.-?2  Hudnall  v.  Ham,  172  111.  76 
GoodseH's    Appeal,    55    Conn.    171;           233  Corker  v.  Corker,  87  Cal.  643 


LAW    OF    WILLS.  ^^■'■ 


after  the  statute  took  effect.-^''  But  the  statute  applies  to 
a  will  made  before  the  passage  of  the  statute,  where  the  mar- 
riage follows  the  passage  of  the  statute.^^^ 

Under  statutes  which  provide  that  marriage  does  not  revoke 
a  will  made  in  contemplation  of  marriage,  the  fact  that  mar- 
riage was  contemplated  must  appear  from  the  will  itself. 2=^*^^ 

Where  a  testator  devised  all  his  property  to  "a  certain  sin- 
gle woman,"  naming  her,  and  making  her  executrix  without 
bond,  and  a  year  afterwards  married  her,  it  was  held  that  by 
force  of  the  statute  the  will  was  thereby  revoked;   and  the 
fact  that  they  were  engaged  to  be  married  at  the  time  that  the 
will  was  made  (such  fact  not  appearing  on  the  will)    did  not 
prevent  the  revocation,  as  the  statute  only  excepted  cases  where 
the  fact  that  the  will  was  made  in  contemplation  of  marriage 
appeared  from  the  will  itself.-"      And  even  when  the  mar- 
riage takes  place    a  very  short  time  after  the  execution  of  the 
will,  it  can  not  be  held  to  be  made  in  contemplation  of  mar- 
riage unless  such  intention  appears  on  the  face  of  the  will 
itself. 2^*      So  where  a  man  makes  a  devise  to  a  woman  who 
is  living  with  him  as  his  mistress,^^^  or  who  has  been  married 
to  him  by   a   marriage   invalid   in   law,^^*^    and   subsequently 
marries  her,  such  marriage  revokes  the  will. 

A  valid  ante-nuptial  contract  whereby  the  wife  releases  all 
claims  against  the  husband's  estate,  for  a  valuable  considera- 
tion, bars  the  wife  from  claiming  that  the  husband's  will,  ex- 
ecuted before  marriage,  was  revoked  by  marriage.^^^ 

234  Swan  V.  Sayles,  165  Mass.  177.       11   L.   R.  A.   51;    Goods  of  Russell, 

235  ino-ersoll      v.      Hopkins,      170       L.  R.  15  P.  D.  111. 

Mass.  401;  40  L.  R.  A.  191.  239  Gall's    Will,    32    N.    Y.    S.    R. 

236  Ellis  V.   Darden,   86   Ga.   368;       695;   10  N.  Y.  Siipp.  661n. 

Swan  V.  Sayles,  165  Mass.  177 ;  In-  24o  Waiter    v.    Waiter,   L.    R.    15 

gersoll  V.  Hopkins,  170  Mass.  401 ;  P.  D.  152. 

40  L.  R.  A.  191.  241  Biggerstatt'   v.    Biggerstaflf,    95 

237lngersoll      v.      Hopkins,      170  Ky.    154;     Stewart    v.    Mulholland, 

Mass.    401 ;    49    N.    E.    623,    citing  88  Ky.  38 :  Morton  v.  Onion,  45  Vt. 

and  '  following    Otway    v.    Sadlier.  145.     See  Ransome  v.   Connelly,   93 

33   L.   T.    46;    Goods   of   Cadywold,  Ky.   63;    14   Ky.   Law  Rep.   73;    18 

1    Sw.   &   Tr.    34;    Ellis   v.   Darden,  S.    W.     1029;     Stewart    v.    Powell, 

86  Ga.  368  ;   11  L.  R.  A.  51.  (Ky.)  90  Ky.  511 ;  10  L.  R.  A.  57. 

238  Ellis   V.   Darden,   86   Ga.   368;  In    this    last    case    it     was    held 


322  LAW    OF    WILLS. 

In  other  jurisdictions  marriage  of  a  testator  is  i^nma  facie 
a  revocation  of  Ms  will,  but  this  prima  facie  presumption  may 
be  overthrown  by  showing  that  the  will  was  made  in  con- 
templation of  marriage,  or  that  testator  Avished  it  to  be  in 
force,   notwithstanding   his   marriage."'" 


242 


S282.     Effect  of  birth  of  child  on  will    of    father.— Common 
law. 

At  the  common  law  the  birth  of  a  child  alone  did  not  re- 
voke the  will  made  by  its  father  after  his  marriage,  and  before 
the  birth  of  a  child  as  the  offspring  of  such  marriage,  since 
after  marriage  he  must  have  been  presumed  to  contemplate 
the  birth  of  children,  and  to  make  his  will  with  reference 
thereto.^  ^^ 

§283.     Effect  of  marriage  and  birth  of  child  on  man's  will. 

At  ecclesiastical  law  it  was  held  that  the  marriage  of  tes- 
tator, and  the  birth  of  a  child  capable  of  inheriting  his  prop- 
erty and  unprovided  for,  would  together  revoke  a  prior  will, 
though  neither  of  such  facts  taken  by  itself  would  have  such 
effect.  Tliis  doctrine  was  finally  adopted  by  the  common 
law.2^*  It  was  based  by  the  courts  upon  the  theory  that  if 
testator's  attention  had  been  called  to  his  prior  will,  he  would 
presumably  have  revoked  it.^'*'^ 

When  this  change  of  circumstances  was  shown  to  have  oc- 
curred, a  presumption  arose  that  testator  intended  to  revoke 
his  will.  This  presumption  was,  however,  only  a  prima  facie 
one,  and  might  be  rebutted.-'*'' 

that    while    the    heirs    of    testator  S.  10:  R.  R.  v.  Wasserman,  22  Fed. 

may    claim    revocation,    the    widow  Rep.   872;    McCullum   v.   McKenzie, 

can  not,  since,  nnder  the  ante-nup-  26    lo.    510;    Hoit   v.    Hoit,    G3    N. 

tial    contract,    she   would    take    the  H.    475;    Yerby    v.    Yei-by,    3    Call, 

same  whether  the  Avill  is  upheld  or  289. 
not.     See  Sec.  325.  24*  Spraage    v.    Stone,    2    Ambler 

242  Lant's  Appeal,  95  Pa.  St.  279 ;  721 ;  Kenebel  v.  Scrafton,  2  East, 
Wheeler   v.    Wheeler,    1    R.    I.    364;  530. 

Miller  v.  Phillips.  9  R.  I.  141.  245  Brady    v.    Cubitt.    Dougl.    31. 

243  Wellinffton  v.  Wellington,  4  246  Brady  v.  Cubitt,  Dougl.  31. 
Burr.  2165:  Doe  v.  Barford.  4  M.  & 


LAW     OF     WILLS. 


828 


In  this  country  it  has  been  adopted  as  settled  law  that  the 
marriage  of  a  man,  and  the  birth  of  a  child,  both  occurring  sub- 
sequent to  the  execution  of  his  will,  will  revoke  such  will.^^'^ 

The  reason  given  for  the  rule  b}^  modern  authorities  is 
rather  that  the  law  annexes  to  a  will  made  by  any  man  a 
condition  that  the  will  is  not  to  take  effect  if  he  afterwards 
marries  and  has  a  child  capable  of  inheriting  his  property.^""* 

In  order  to  effect  a  revocation  the  child  must  not  have  been 
provided  for  in  any  way.  Hence,  it  is  held  by  some  courts 
where  the  will  does  not  pass  the  entire  estate  of  testator,  but 
leaves  a  substantial  portion  to  descend,  according  to  the  laws 
of  intestacy,  that  a  provision  is  made  for  the  child  and  the 
will  is  not  revoked.^'*^  If,  however,  the  will  disposes  of  the 
entire  estate  of  the  testator,  the  fact  tliat  he  subsequently 
acquired  property  which  would  not  pass  by  the  terms  of  the 
will,  but  would  descend  to  his  child,  would  not  be  such  provi- 
sion as  would  prevent  revocation.^^^  If  the  children  born  of 
the  subsequent  marriage  are  expressly  provided  for,  either  by 
the  will  or  by  an  ante-nuptial  settlement,  the  will  is  not  of 
course  revoked.^^^ 


247  Gay  V.  Gay,  84  A^.  38 :  San- 
ders V.  Simcich,  65  Cal.  50;  Good- 
sell's  Appeal,  55  Conn.  171;  Bel- 
ton  V.  Summer,  31  Fla.  139;  21 
L.  R.  A.  146;  Hart  v.  Hart,  70 
Ga.  764;  Shorten  v.  Judd,  60  Kan. 
73;  53  Pac.  286;  Baldwin  v. 
Spriggs,  65  Md.  273;  Warner  v. 
Beach,  4  Gray  (Mass.),  162;  Lan- 
sing V.  Hayues,  95  Mich.  16;  Mor- 
gan V.  Davenport,  60  Tex.  230; 
Wilcox  V.  Rootes,  1  Wash.  (Va.), 
140 ;  Sneed  v.  Ewing,  5  J.  J.  Marsh. 
(Ky.),  460. 

248  Marston  v.  Roe,  8  Ad.  &  EI. 
14;  Corker  v.  Corker,  87  Cal.  643; 
Hoitt  V.   Hoitt,   63  N.  H.   498. 

Contra,  Yerby  v.  Yerby,  3  Call 
(Va.),  289;  apparently  adopts  the 
theory  of  the  ecclesiastical  law  that 
the  question  is  one  of  prima  facie 
intention  only,  as  do  Sanders  v. 
Simcich,  65  Cal.  50:  Brush  v.  Wil- 


kins,   4  .Tohns.   Ch.   506;    Havens  v. 
Van  den  Burgh,   1   Den.  27. 

These  cases  are  not  on  their  facts 
as  diverse  as  would  appear  from 
the  statement  of  the  underlying 
theory;  as  the  fact  relied  on  to 
rebut  the  presumption  of  implied 
revocation  is  the  provision  for  the 
child   by  way  of   settlement. 

249  Doe  V.  Edlin,  4  Ad.  &  El. 
582;  Marston  v.  Roe,  8  Ad.  &  El. 
14;    Brady   v.   Cubitt,    Dougl.    31. 

250  Baldwin  v.  Spriggs,  65  Md. 
273. 

251  Gay  V.  Gay,  84  Ala.  38;  San- 
ders v.  Simcich,  65  Cal.  50;  War- 
ner V.  Beach,  4  Gray  (Mass.),  162; 
Brush  V.  Wilkins,  4  Johns.  Ch.  50C ;: 
Kurtz  V.  Savior,  20  Pa.  St.  205: 
Fransen's  Will.  26  Pa.  St.  202; 
Phaup  V.  Wooldridge,  14  Gratt. 
(Va.),    332. 


324  LAW     OF     WILLS. 

This  common  law  rule  that  marriage  and  the  birth  of  a 
child  revoked  testator's  will  has  been  enacted  hj  statute  in 
many  American   states.^^^ 

§284.     Effect  of  marriage  on  will  of  wife. — Common  law  and 
statute. 

At  coimnon  law  the  will  of  a  woman  was,  ipso  faeto,  re- 
voked by  her  marriage.  This  rule  was  based  upon  the  theory 
that  the  same  degree  of  capacity  was  required  to  revoke  a 
will  as  to  make  one;  that  a  married  woman  not  being  able 
to  make  a  will  could  not  revoke  one  -made  before  marriage; 
and  therefore,  unless  the  marriage  itself  revoked  the  will,  it 
would  be  irrevocable  during  coverture.^^^ 

This  rule  was  very  generally  adopted  as  the  common  law 
rule  in  the  United  States,^^"*  and  has  been  re-enacted  by 
statute  in  many  states.^^^  In  some  states,  on  the  other  hand, 
this  rule  has  been  expressly  repealed  by  statute.^"^*^ 

In  other  states  where  the  statutes  are  silent  as  to  the  effect 
of  marriage  as  a  revocation  of  a  woman's  will,  an  interesting 
question  is  presented  by  the  passage  of  statutes  authorizing 

252Nutt    V.    Norton,     142    Mass.  242;   Swan  v.  Hammond,  138  Mass. 

242;    Blodget   v.   Moore,    141    Mass.  45;    Lansing   v.    Haynes,    95    Mich. 

75;    Swan  v.  Hammond,   138   Mass.  16;    Garrett    v.    Dabney,    27    Miss. 

45;    Edward's    Appeal,    47    Pa.    St.  335;    Cotheal  v.   Cotheal,   40  N.   Y. 

144.  405 ;    Fidelity    Trust    Co.'s    Appeal, 

253Forse     v.    Hambley's     Case,    4  121    Pa.    St.    1;    Carey's   Estate,   49 

Coke,  60;  Hodsden  v.  Lloyd,  2  Bro.  Vt.     236;     Vandeveer     v.     Higgins, 

Ch.    534:    Doe   v.    Staples,   2   T.   R.  —Neb.—,  1899. 

684.  255  Ellis   V.   Darden,   86   Ga.   368; 

"It  is  contrary  to  the  nature  of  11  L.  K    A.  51;   McAnnulty  v.  Mc- 

the  instrument  which  must  be  am-  Annuity,    120    111.    26;    Blodgett    v. 

bulatory  during  the  life  of  the  tes-  Moore,  141  Mass.  75;  Swan  v.  Ham- 

tatrix,  and  as  by  the  marriage  she  mond,    138   Mass.   45;    McLarney  v. 

disables    herself    from    making    any  Phelan,  153  N.  Y.  416;   Craft's  Es- 

other    will,    the     instrument    ceases  tate,  164  Pa.  St.  520;  Hale  v.  Hale, 

to    be    of    that    sort    and    must    be  90  Va.   728;   Phaup  v.  Wooldridge, 

void."      Hodsden    v.    Lloyd,    2    Bro.  14  Gratt.  332. 

Ch.   534.  230  Emery's   Appeal,   81   Me.   275; 

254Co1cord  V.  Conroy,  40  Fla.  97;  Church    v.    Crocker,    3    Mass.     17: 

23   So.   561:    Cruni  v.   SawT^er,    132  Webb  v.  Jones,  9  Stew.  (N.  J.),163. 
IlL  443;  Nutt  v.  Norton.  142  Mass. 


LAW     OF     WILLS.  325 

married  women  to  make  wills.  This  evidently  does  away  with 
the  reason  underlying  the  common  law  rnle,  and  the  ques- 
tion is  often  presented  whether  it  destroys  the  rule  together 
with  the  reason.  A  majority  of  the  courts  hold  that  such  a 
statute  prevents  the  marriage  of  a  woman  from  acting  ipso 
facto,  as  a  revocation  of  a  prior  wilh^^^ 

In  a  Delaware  case  it  was  held,  recognizing  the  principle 
just  stated  but  distinguishing  the  facts,  that  where  the  will 
was  made  before  the  passage  of  the  act,  and  the  marriage  took 
place  after,  the  will  was  revoked  since  the  statute  applied 
only  to  wills  executed  after  its  passage.^^s 

Under  statutes  where  a  married  woman  might  make  a  will 
of  realty,  but  not  of  personalty,  marriage  revoked  the  latter, 
but  not  the  former.^^^ 

A  minority  of  the  courts  adhere  to  the  common  law  rule,  and 
treat  the  marriage  of  a  woman  as  a  revocation  of  a  prior  will, 
where  no  statute  specifically  provides  for  such  case.-^^ 

Where  the  statutes  give  a  married  woman  the  power  to 
make  a  will,  and  also  provide  expressly  that  her  marriage  shall 
act  as  a  revocation  of  a  prior  will,  the  statute  on  the  subject 
of  revocation  is  strictly  construed.  As  it  provides  generally 
that  the  will  of  any  'unmarried  woman'  shall  be  revoked  by  a 
subsequent  marriage,  it  includes  the  will  of  a  widow  made 
during  her  widowhood,  where  she  afterwards  remarries.^*'^ 
But  it  does  not  apply  to  a  will  made  by  a  married  woman 

257Tuller's     Will,     79     111.     99;  259  Carey's    Estate,    49    Vt.    236. 

Hunt's    Will,    81    Me.    275;    Roane  260  Shorten  v.  Judd,  60  Kan.  73; 

V.  Hollingshead,  76  Md.  369;   17  L.  Stewart  v.  Mulholland,  88  Ky.  38; 

R.    A.    592;    Noyes    v.    Southworth,  Blodgett   v.   Moore,    141    Mass.    75; 

55  Midi.  173;  54  Am.  Rep.  359;  Fel-  Swan  v.   Hammond,    138   Mass.   45; 

lows   V.    Allen,    56    Am.    Rep.    530;  Brown  v.  Clark,  77  N.  Y.  369. 

60  N.  H.  439;  Morey  v.  Sohier,  63  This   is   said  to  be  still   the  rule 

N.   H.   507 ;    Hoitt  v.   Hoitt,   63  N.  in  Nebraska  as  far  at  least  as  the 

H.   475 ;    Webb   v.   Jones,    36   N.   J.  curtesy  of  the  husband  is  concerned. 

Eq.    163:    Morton   v.   Onion,   45   Vt.  Vandeveer  v.  Higgins,  — ,  Neb.  — , 

145;     Ward's    Will,    70    Wis.    251;  1899;    80  N.  W.  1043. 

Lyon's  Will,  96  Wis.  339.  261  Blodgett   v.   Moore,   141   Mass. 

25S  Smith    V.    Clemson,    6    Houst.  75;  In  re  Kaufman,  131  N.  Y.  620. 
(Del.),    171. 


32(3  LAW     OF     WILLS. 

during  coverture,  though  her  husband  afterwards  dies  and 
she  remarries.^^^ 

These  statutes  are  generally  so  worded  as  not  to  apply  where 
the  marriage  whereby  the  will  is  sought  to  be  revoked  was 
solemnized  before  the  statute  took  elfect.-^^  Since  a  married 
woman  could  always  execute  a  power  conferred  upon  her,  even 
if  such  power  was  to  be  executed  by  will,  her  marriage  did 
not  revoke  a  will  made  to  execute  a  power.-^'*  And  where  the 
woman  expressly  reserved,  by  an  ante-nuptial  agreement,  the 
power  to  dispose  of  her  property  by  will,  her  subsequent  mar- 
riage did  not  effect  a  revocation.^^^ 

An  ante-nuptial  contract  may  refer  to  a  previously  executed 
will  in  such  a  way  as  to  make  it  an  execution  of  the  power 
created  by  the  contract.  In  such  case  the  marriage  will  not 
revoke  the  will.^^^  In  such  case,  however,  the  birth  of  a  child 
not  provided  for  by  will  or  otherwise  might  revoke  the  will ; 
even  though  the  husband  could  not  avoid  it  at  his  option.^^'^ 
But  an  agreement  that  the  woman  shall  retain  control  of  her 
own  property  does  not  prevent  the  marriage  from  revoking 
the  will,  since  the  property  becomes  the  husband's  on  mar- 
riage.- 

As  appears  from  the  foregoing  sections,  modern  legislation 
has,  in  many  jurisdictions,  made  the  same  rules  applicable  to 
the  wills  of  men  and  women.  In  some  jurisdictions  marriage 
revokes  the  wills  of  both ;  in  others,  of  neither.     In  the  latter 

262  Chapman   v.   Dismer,    14   App.  141  ;       Phaup     v.     Wooldridge,     14 

D.  C.  446:  In  re  McLarney,  153  N.  Gratt.    (Va.),  332. 

Y.    416.  265  Osgood    V.     Bliss,     141    Mass. 

A   married   woman   made  a  will.  474 ;     Lant's    Appeal,     95     Pa.     St. 

Then   her    husband   died:    she   then  279;   Morton  v.  Onion,  45  Vt.   145. 

aciopted  a  child ;    married  a  second  266  Boyes  v.  Cook,  14  Ch.  D.  53 ; 

time,    and    was    divorced    from    her  Logan  v.  Bell,  1  C.  B.  872 ;  Osgood 

second    husband.      These    facts    did  v.  Bliss,  141  Mass.  474;  Lant's  Ap- 

not  effect  a  revocation  of  her  will.  peal,  95  Pa.   St.  279. 

Comassi's  Estate,  107  Cal.  1.  267  Nutt    v.    Norton,     142    Mass. 

263GoodEeirs    Appeal,     55     Conn.  242;    Craft's    Estate,    164    Pa.    St. 

171;  McAnnulty  v.  McAnnulty,  120  520. 

111.  26 :    Swan  v.  Sayles,   165  Mass.  268  Xutt    v.    Norton,    142    Mass. 

177.  242;    Lathrop  v.   Dunlap,   63  N.  Y. 

264  Cutter    V.    Butler,    25    N.    H.  610 ;   Carey's  Estate,  49  Vt.  236. 
343;     Miller    v.    Phillips.    9    R.    1. 


LAW   Of   wills.  327 

class  of  states  the  birth  of  a  child  revokes  the  will  either  en- 
tirely or  pro  tanto. 

§285.     Effect  of  change  not  specified  by  law. 

While  there  is  considerable  diversity  among  the  different 
states  as  to  what  constitutes  a  revocation  by  change  of  cir- 
cumstances (a  diversity  almost  entirely  confined  to  statute 
law),  it  is  well  settled  that  combinations  of  fact  other  than 
those  specifically  recognized  by  law  will  not  effect  a  revoca- 
tion of  a  prior  will,  no  matter  how  strongly  it  may  be  con- 
jectured that  testator  would  have  revoked  his  will  if  his  at- 
tention had  been  called  to  it.  The  death  of  the  chief  benefi- 
ciary before  the  testator  does  not  revoke  the  will,^*"^  nor  does 
the  death  of  the  sole  legatee  where  an  executor  is  appointed,^^*^ 
nor  probably  even  where  no  executor  is   appointed.^'^^ 

A  great  increase  in  testator's  property,  the  birth  of  a  chihl 

contemplated  in  the  will,  the  death  of  testator's  wife,  and  the 

insanity  of  testator  for  years  so  that  he  could  not  revoke  his 

will,  are  not  facts  which  amount  in  law  to  a  revocation  of  his 
will.2^2 

The  fact  that  testator,  who  had  made  a  will  in  favor  of  his 
wife,  was  afterwards  divorced  from  her  does  not  revoke  the 
will,  even  where  they  settled  and  adjusted  their  property 
rights  on  separation.-^^  So  where  a  testator  made  a  will  in 
favor  of  a  woman  whom  he  was  about  to  marry,  and  they 
were  afterwards  married  and  then  divorced,  it  was  held  that 
such  facts  did  not  revoke  his  will.^'^^  But  where  testator  de- 
vised property  to  his  wife,  and  ten  years  afterwards  they  were 
divorced  and  by  agreement  terminated  all  their  property  re- 
lations, in  pursuance  of  which  agreement  he  deeded  part  of 

269  Brown     v.     Just,     118     Mich.       492;   Baacke  v.  Baacke,  50  Neb.  18. 
678 ;  77  N.  W.  263.  This    case    does    not    refer    to    Lan- 

270  In  re  Hiclcman,   101   Cal.  609.       sing  v.  HajTies,  95  Mich.  16. 

2T1  Hoitt  V.  Hoitt,  63  N.  H.  475.  274  Charlton    v.    Miller,    27    O.    S. 

272  Warner  v.   Beach,   4  Gray,   70  298.     While  n^^t  on  the  exact  point 
Mass.  162.  Corker  v.  Corker,  87  Cal.  643,  sup- 

273  Card   V.    Alexander,    48    Conn.  ports    this    case    by    its    reasoning. 


328  LAW     OF    WILLS. 

his  property  to  her,   it  was   held  that  such  facts  effected   a 
.  revocation  by  implication.^'^^ 

§286.     Effect  of  alteration  of  circumstances  after  revocation  is 
complete. 

If  a  will  is  revoked  by  change  of  testator's  circumstances 
no  subsequent  change  of  circumstances  can  revive  it.^*^^  Thus, 
a  will  revoked  by  the  birth  of  a  child,  testator  having  none 
when  he  made  the  will,  is  not  revived  by  the  fact  that  testator 
survives  the  child.^'^'^  This  rule,  of  course,  does  not  appl3' 
where  by  statute,  the  will  is  revoked  only  where  the  wife  or 
child  survives  the  testator.  So  a  will  revoked  by  the  sub- 
sequent marriage  of  testator  is  not  revived  by  the  subsequent 
separation  of  the  parties.^'^^ 

§287.     Effect  of  birth  of  child  upon  will  of  childless  parent. 

At  the  common  law  the  birth  of  a  child  did  not  of  itself  re- 
voke a  will  previously  executed  by  its  parent,^^^  nor  did  such 
child  have  any  rights  in  testator's  estate  as  against  the  de- 
visee."^^ 

In  Iowa,  however,  it  was  held  at  common  law  that  the  birth 
of  a  child  to  testator  revoked  a  previously  executed  will.  This 
view  was  held  in  a  case  where  testator  was  childless  when  the 
will  was  made,^^^  but  was  extended  to  the  case  where  testator 
had  children  living  when  the  will  was  executed  f^^  and  was 
held  to  amount  to  a  total  revocation.^^^ 


275  Lansing   v.    Haynes,    95   Mich.  ers,   53   Ind.   430;    Hulett  v.   Carey, 

16.  G6  Minn.  327. 

This   case   distinguishes   Charlton  2-9  See  Sec.  282. 

V.  Miller,  on  the  ground  that  there  ssowild  v.  Brewer,  2  Mass.  570 

was     no     settlement     of     property  Prentiss    v.    Prentiss,    11    All.    47 

rights  in  that  case.  Peters    v.    Siders,    126    Mass.    135 

270  Emerson    v.    Boville,    1    Phill.  Cotheal  v.   Cotheal,   40  N.   Y.   405 

342;    Ash  v.  Ash,  9  O.  S.  383.  Chace  v.   Chace,  6  R.  I.  407. 

277  Cases  cited  in  preceding  note.  2si  McCulluni  v.  McKenzie,  26  lo. 

278  Corker  v.  Corker,  87  Cal.  643;  510. 

or    by    their    divorce.      Stewart    v.  2S2  Alden  v.  Johnson,  63  To.   121. 

Powell,  90  Ky.  511;  Bowers  v.  Bow-  ass  Negus   v.   Negus,   46   lo.    487; 

Fallon   V.    Chidestor,    46    lo.    588. 


LAW    OF    WILLS. 


J29 


"Nor  did  a  child  omitted  without  any  intention  of  excluding 
it  from  its  share  of  testator's  estate,  as  where  it  was  believed 
at  the  time  of  the  execution  of  the  will  to  be  dead,  have  any 
rights  in  testator's  estate  as  against  the  devisee.^^'* 

In  many  states  these  common  law  principles  have  been  al- 
tered or  abrogat-ed  by  statute.  The  details  of  these  statutes 
are  almost  as  many  as  the  jurisdictions  in  which  they  are  in 
force;  but  in  their  essential  features  they  may  be  reduced  to 
three  classes: 

1.  Statutes  of  the  first  class  provide  that  the  birth  of  a  child 
to  testator  shall  revoke  the  will  if  such  child  is  not  provided 
for  by  will,  or  is  not  intentionally  excluded.  Statutes  of  tliic 
class  usually  by  their  terms  apply  only  when  testator  had  no 
children  at  the  time  of  executing  his  will.^^^  Where  testator 
had  had  children,  who  were  dead  when  the  will  was  made, 
the  birth  of  subsequent  children  operated  under  these  statutes 
as  a  revocation.-^^  Where  a  will  is  thus  revoked  by  the  birth 
of  a  child,  the  subsequent  death  of  the  child  before  testator 
does  not  revive  the  wilL"^'' 

§288.     Effect  of  birth  of  child  upon  will  of  parent  who  has 
other  children  living-. 

2.  Statutes  of  the  second  class  usually  apply  where  testator 
had  a  child  or  children  living  at  the  time  of  the  execution  of 
his  will,  and  provide  that  in  case  of  the  birth  of  a  child  (or 
in  some  cases  the  discovery  of  the  existence  of  a  child  who 
was  thought  to  be  dead)  subsequent  to  the  execution  of  a  will 
in  which  such  child  is  not  provided  for,  and  where  intention 
to  exclude  'iuch  child  is  not  shown,  such  child  shall  take  the 


284Gifford   V.    Dyer,    2   R.    I.    99.  210;    Ash    v.    Ash,    9    O.    S.    383; 

285  Belton     V.     Sumner,     31     Fla.  Evans   v.   Anderson,    15   O.   S.   324; 

139:   21   L.  R.   A.   146;   Baldwin  v.  Rhodes   v.   Weldy,   46   O.    S.   234. 

Spriggs,    65    Md.    373;    Coudert    v.  286  Coudert  v.   Coudert,   43   N.   J. 

Coudert,   43  N.  J.   Eq.   407;    Smith  Eq.   407. 

V.  Robertson,  89  N.  Y.  555;  24  Huri,  287  Ash  v.  Ash,   9   0.   S.   383. 


330  LAW    OF    WILLS. 

share  of  testator's  estate  that  it  would  have  taken  had  testator 
died  intestate.^^^ 

Under  these  statutes  a  will  of  a  married  woman  made 
in  execution  of  a  power  is  avoided  by  the  birth  of  a  child 
after  such  execution,  as  far  as  the  interests  of  such  child  are 
concerned.^^^ 

Statutes  of  the  second  class  do  not  provide  for  a  revocation 
of  the  will  by  the  subsequent  birth  of  a  child,  but  only  that 
the  after-born  child  shall  take  as  if  his  parent  had  died  intes- 
tate. Accordingly,  if  such  after-born  child  dies  without  issue 
before  testator,  the  will  of  testator  is  not  avoided  even  to  the 
extent  of  the  interest  of  such  child. 

§289.     Construction  of  these  statutes. — "Having  no  child." 

One  of  the  questions  which  has  been  presented  to  the  courts 
mider  statutes  of  these  classes  is.  What  is  'having  no  child'  with- 
in the  meaning  of  the  provision  of  the  statute  referring  to  a 
child  bom  after  the  execution  of  the  will  ? 

Where  the  mother  of  the  child  was  pregnant  at  the  time  of 
the  execution  of  the  will,  and  the  child  was  born  after  the  ex- 
ecution of  the  will,  it  is  held  that  under  such  circumstances 
the  testator  or  testatrix  'had  no  child'  within  the  meaning  of 
the  statute,  and  the  birth  of  such  child  avoids  the  will.^^^ 

288Clarkson  v.  Stevens,  106  U.  224;  Walker  v.  Hall,  34  Pa.  St. 
S.  505;  Holloman  v.  Copeland.  10  48.3;  Grosvenor  v.  Fogg,  81  Pa.  St. 
Ga.  79;  Tyler  v.  Tyler,  19  111 
151 :  Hughes  v.  Hughes,  37  Ind 
183;  In  re  Minot,  164  Mass.  38 
Bowen  v.  Hoxie,  137  Mass.  527 
Peters  v.  Siders,  126  Mass.  135 
Bancroft  v.  Ives,  3  Gray  (Mass.) 
367;  Beck  v.  Metz,  25  Mo.  70 
Horkensmith  v.  Slusher,  26  Mo 
237 ;  Stevens  v.  Shippen,  1  Stew 
(N.  J.),  487;  2  Stew.  (N.  J.),  602 
Wilson  v.  Fritts,  5  Stew.  (N.  J.) 
50  :  Rhodes  v.  Weldy,  46  O.  S.  234 


400;  Potter  v.  Brown.  11  R.  I.  232; 
Burns  v.  Allen,  93  Tenn.  149;  2.3 
S.  W.  Ill;  Verrinder  v.  Winter,  98 
Wis.   287. 

289  Young's  Appeal,  39  Pa.  St. 
115. 

290  Waterman  v.  Hawkins,  63  Me. 
156;  Evans  v.  Anderson,  15  O.  S. 
324;  Rhodes  v.  Weldy,  46  O.  S. 
234;  Willard's  Estate,  68  Pa.  St. 
327;  Burns  v.  Allen,  93  Tenn.  149: 
23  S.  W.  Ill;  Verrinder  v.  Winter, 


Tomlinson    v.    Tomlinson,     1     Ash.       98   Wis.   287. 


LAW    OF    WILLS.  ^^^ 

§290.     Construction  of  these  statutes.— "Subsequent"  birth,   or 
having  child  "afterward." 

Another  point  which  has  been  the  subject  of  adjudication 
is,  What  is  the  meaning  of  "subsequent"  or  "afterward'-'  with- 
in the  meaning  of  this  provision  of  the  statute?  It  is  held 
that  the  birth  of  a  posthumous  child  avoids  a  prior  will  under 
the  terms  of  these  statutes.-^^  In  some  states  the  statutes 
originally  protected  the  interests  of  posthumous  children 
only ,2^2  and  children  bom  after  the  execution  of  the  will  and 
before  the  death  of  testator  could  take  only  what  the  will 

gave  them."^''^ 

The  birth  of  an  illegitimate  child,  after  execution  of  the 
will,  if  followed  by  such  recog-nition  by  both  parents  as  to 
give' it  capacitv  of  inheriting  under  the  local  statutes  of  descent, 
is  sufficient  tJ  avoid  or  revoke  the  will.^^^  But  if  the  statute 
does  not  provide  for  the  legitimation  of  an  illegitimate  child 
by  recognition,  or  if  no  such  recognition  takes  place,  the  sub- 
sequent birth  of  an  illegitimate  child  does  not  avoid  the  will 
of  its  parent,  even  of  its  mother.-^^ 

Where  the  illegitimate  child  was  bom  before  the  will  was 
executed,  its  recognition  and  legitimation  after  the  will  is  ex- 
ecuted is  not  a  constructive  birth  so  as  to  avoid  the  will.^^® 
The  adoption  of  a  child  is  not  of  itself  sufficient  to  revoke  a 
prior  valid  will.^^'^ 

Some  statutes  of  these  two  classes  entirely  deprive  testator 
of  the  power  of  disinheriting  his  after-born  children;  and 
avoid  the  will,  at  least  so  far  as  such  after-born  children  are 

291  Hart    V.    Hart.    70    Ga.   764;  295  Kent      v.      Barker,      2      Gray 

Bowen    v.    Hoxie.    137    Mass.    527;  (Mass.),  535. 

Evans  v.   Anderson.   15   O.   S.   324;  296  McCulloch's    Appeal,    113    Pa. 

Wilson  V.  Otto,  160  Pa.  St.  433 :  Mc-  St.  247. 

Knight   V.   Read,    1    Whart.    (Pa.),  297  Comassi's   Estate,    107    Cal.    1 

.,j3  (Will  of  a  woman).    Davis  v.  Fogle, 

^   292^70^  parte  Warner.  Dud.  Eq.   (S.  124  Ind.  41;   Davis  v.  King,  89  N. 

CaT.K   154;     Talbird  v.   Bell,    1   De  Car.   441. 

S    (S    Car  )    592.  Contra.  Hilpipre  v.  Claude   (lo.) 

"'"293  Ellis  v.  ElHs,  2  De   S.   55&.  (1899)    80    N.    W.    332;    Woods    v. 

294Milburn    v.    Milburn,    60    lo.  Drake,  135  Mo.  393. 

411. 


332  LAW    OF    WILLS. 

conceraed.  No  attention  is  paid,  under  statutes  of  this  class, 
to  the  actual  intention  of  testator.  Even  if  it  appears  from 
the  will  that  it  was  the  intention  of  testator  to  disinherit  his 
after-boni  children,  they  will  take  as  though  testator  died 
intestate,  and  the  will  will  be  revoked  as  to  them.  Statutes 
of  this  class  provide  that  after-born  children  shall  take  as  if 
testator  had  died  intestate  unless  some  provision  is  made  for 
such  children.^^^ 


§291.     Omission  of  children  from  a  will, 

3.  The  third  class  of  statutes  provide  in  substance  that  if  tes- 
tator does  not  provide  for  his  children  by  will,  or  show  his 
intention  to  omit  such  provision,  such  omitted  children  will 
take  as  if  testator  had  died  intestate.^^^  This  rule  applies  as 
well  to  community  property  as  to  testator's  separate  prop- 
erty.=^«« 

The  statutes  of  this  class  were  originally  framed  on  the 
theory  that  a  testator  who  neither  provided  for  his  children, 
nor  expressly  indicated  his  intention  not  to  provide  for  them, 
must  have  omitted  to  provide  for  them  through  inadvertence, 
and  that  his  probable  intention  could  be  best  enforced  by  giv- 
ing the  omitted  children  such  share  as  they  would  have  taken 
had  testator  died  intestate.  By  their  terms  and  the  constnic- 
tion  placed  upon  them  by  the  courts,  however,  they  go  farther 
than  this  and  operate  as  a  restriction  upon  the  power  of  tes- 
tamentary disposition. 

298  Holloman  v.  Copeland,  10  Ga.  under    Arkansas    law):    Merrill    v. 

79;   Waterman  v.  Hawkins,  63  Me.  Hayden,    86   Me.    133;    Ramsdill   v. 

156;     Hollingsworth's     Appeal,     51  Wentworth,   101   Mass.   125;   Forbes 

Pa.    St.    518:    Walker    v.    Hall,    10  v.    Darling,    94    Mich.    621:     Steb- 

Casey   (Pa.),  483.  bin's  Estate,  94  Mich.   304:   Woods 

299Boman  v.  Boman,  49  Fed.  329  v.  Drake,  135  Mo.  393:    Thomas  v. 

reversing     (Wash.)     47    Fed.    849;  Black,   113  Mo.  66:   Smith  v.  Shee- 

Trotter    v.    Trotter,    31    Ark.    145 ;  han,  67  N.  H.  344 ;  Bower  v.  Bower, 

Smith    V.    Olmstead,    88    Cal.    582;  5   Wash.   225;    31    Pac.   598;    Bark- 

12  L.  R.  A.  46;   Rhoton  v.  Blevin,  er's  Estate,  5  Wash.  390;  Mason  v. 

99  Cal.  645 ;  Hawhe  v.  Chicago  &  W.  McLean,  6  Wash.  31 ;    Hill  v.  Hill, 

I.   Ry.   Co.,    165   111.    561 ;    Lurie   v.  7  Wash.  409. 

Radiiitzer,    166   111.   609:    Arnold   v.  3oo  Hill    v.    Hill,    7    Wash.    409. 
Arnold  62  Ga.  627    (a  case  arising 


LAW    OF    WILLS. 


333 


Some  of  the  statutes  provide  that  the  child  shall  take  the 
share  of  the  estate  which  he  would  have  had  if  testator  had 
died  intestate  unless  such  child  is  named  or  provided  for  by 
the  will.=^*^i 

§292.     What  shows  intentional  omission  of  a  child. 

Under  statutes  which  provide  that  an  omitted  child  shall 
take  such  share  of  his  parent's  estate  as  he  would  have  received 
if  his  parent  had  died  intestate,  unless  such  child  is  provided 
for,  or  it  appears  that  testator  intended  to  make  no  provision 
for  him,  no  set  form  of  words  is  necessary  to  show  that  the 
omission  was  intentional.  Any  form  of  expression  from  which 
testator's  intention  can  be  inferred  is  sufficient  to  exclude  such 
child.'^^"  Unless  such  intention  does  appear,  the  omission 
will  be  presumed  to  have  been  uniutentional  and  the  child 
will  take  as  if  his  parent  had  died  intestate.^"^ 

But  the  courts  do  not  agree  as  to  what  provisions  show  an  in- 
tentional omission.  In  some  cases  it  is  held  that  where  testator, 
with  full  knowledge  of  the  facts,  disposes  of  all  his  property 
by  will  to  his  wife,  he  shows  an  intention  not  to  provide  for  his 
minor  children.^^*  This  holding  seems  clearly  contrary  to  the 
spirit  of  the  statute,  and  is  not  entertained  in  otber  jurisdic- 
tions. 

The  Vx'eight  of  authority  is  that  a  devise  of  all  of 
testator's  property,  where  the  children  are  not  named,  does 
not  show  an  intention  to  make  no  provision  for  them.^®'^ 
Where  testator  expressly  provides  that  he  leaves  all  his 
property  to  his  wife  to  the  exclusion  of  his  children, 
not  from  want  of  affection  for  them,  but  because  he  is  sure 

301  Schneider  v.  Koester,  54  Mo.  Ill;  Bank  v.  White,  159  111.  136; 
500.  Bancroft   v.   Ives,   3  Gray    (Mass.), 

302  Merrill  v.  Hayden.  86  Me.  133.       307;   Carpenter  v.  Snow,   117  Mich. 

303  Thomas  v.  ^Black,  113  Mo.  489;  41  L.  R.  A.  820;  Breese  v. 
66;   Mason  v.  McLean.  6  Wash.  31.       Stiles,    22    Wis.    120:      Thomas    v. 

304Hawhe  v.  Chicago  &  W.  I.  Ry.  Black,  113  Mo.  66;  Biirch  v.  Brown, 

Co.  165  111.  561;  Lurie  v.  Radnitzer,  46  Mo.  441;  Bradley  v.  Bradley,  24 

166  111.  609.  '  Mo.  311 ;  Mason  v.  McLean,  6  Wash. 

305  R.    R.    V.    Wasseman,    22    Fed.  31. 
Rep.   872;    Ward  v.   Ward,   120   111. 


334  LAW    OF    WILLS. 

that  she  will  always  be  a  kind  and  devoted  mother  to  them, 
it  is  held  that  this  shows  an  intention  not  to  provide  for  the 
children.^''^ 

A  will  leaving  all  the  property  of  testatrix  to  her  husband, 
to  the  exclusion  of  everyone  else  who  might  be  entitled  to  it, 
was  held  not  to  show  an  intention  to  exclude  the  children  of 
testatrix.^^'^ 

Under  the  terms  of  some  of  these  statutes,  naming  a  child 
is  sufficient  to  show  an  intent  to  make  no  further  provision  for 
such  child    than  is  made  by  the  will.^^^ 

Where  testator's  illegitimate  child  is  clearly  referred  to  by 
mentioning  its  mother,  such  child  is  not  'omitted,'  even  though 
testator  recites  its  first  name  incorrectly.^^^  But  a  bequest  of 
$100  to  each  of  the  "heirs  at  law"  of  testator  is  not  such  a 
naming  of  his  children  as  to  comply  with  the  provisions  of  this 
statute.^^^  But  a  devise  to  testator's  "legal  heirs"  is  a  sufficient 
reference  to  his  children,^^^ 

A  gift  over  to  the  heirs  of  testator's  wife  does  not  show  an 
intention  not  to  provide  for  testator's  children.^^^  So  a  de- 
vise to  testator's  wife  "and  her  heirs  forever,"  is  not  a  provi- 
sion for  testator's  children  by  her  or  a  naming  of  theni.^^^ 

Where  testator  specifically  refers  to  his  unborn  children,  his 
intention  is  clear  to  exclude  them  from  any  share  other  than 
that  given  by  will.  Thus,  where  testator  by  will  provided  that 
if  his  widow  should   remarry,   an  unborn    child    should    re- 


306  Rhoton  V.  Blevin,  99  Cal.  645 ;  L.  R.  A.  46 :  Rhoton  v.  Blevin,  99 
(but  in  an  almost  identical  case,  Cal.  645:  Woods  v.  Drake,  135 
Walker  v.  Hall.  34  Pa.  St.  483.  it  Mo.  393;  Thomas  v.  Black,  113  Mo. 
was  held  that  not  even  such  a  pro-  66. 

vision  could  exclude  after-born  ehil-  309  Gorkow's     Estate,     20     Wash, 

dren.    Under  the  Pennsylvania  Stat-  563. 

ute,    however,    the    after-born    chil-  sio  Boman  v.  Boman,  49  Fed.  329, 

dren    took    as    in    intestacy,    unless  reversing   47   Fed.   849,    (Wash.), 

provided   for).  3ii  Smith    v.   feheehan,    67    N.    H. 

307  Barker's  Estate.  5  Wash.  390;  344  (in  this  case,  however,  a  gift 
So  of  a  gift  to  the  wife,  Hargadine  was  made  direct  to  the  'legal  heirs' 
V.  Pulte.  27  Mo.  423.  of   testator  ). 

308  Boman  v.  Boman,  49  Fed.  329.  3i2  Rhodes  v.  Weldy.  46  O.  S. 
reversing    47    Fed.    849,     (Wash.)  :  234. 

Smith  V.  Olmstead,  88  Cal.  582:   12  3 1.-?  Bower  v.  Bower,  5  Wash.  22.5. 


LAW    OF    'WILLS. 


335 


ceive  one-third  of  his  property,  but  that  otherwise  the  widow 
should  receive  such  part,  it  was  shown  that  the  testator  either 
provided  for  such  unborn  child  or  intended  to  make  no  provi- 
sion.^^ ^  So,  where  a  testatrix-  provided  that  her  property 
should  go  to  her  husband  if  he  survived  her,  but  if  not,  "and 
I  shall  die  leaving  a  child  or  children,"  then  to  such  child  or 
children,  it  was  held  to  be  a  provision  for  them,  and  to  show  an 
intention  not  to  provide  for  them  further.^^^ 

In  some  jurisdictions,  however,  the  word  'heir'  in  a  gift 
to  the  surviving  spouse  and  his  heirs,  is  held  to  show  testator's 
intention  to  exclude  his  children.^^*^  A  gift  to  one  to  the 
exclusion  of  'any  one. else'  who.. might  be  entitled  to  such  prop- 
erty, is  not  a  naming-  of  the  disinherited  children.^^'^ 

A  reference  to  testator's  minor  children  is  not  a  naming  of 
his  adult  children. ^^'^  But  a  bequest  to  the  children  of  an 
adopted  daughter  is  a  sufficient  naming  of  such  adopted 
daughter.^^^ 

A  reference  to  a  deceased  daughter  shows  testator's  inten- 
tion to  make  no  provision  for  her  children  where  none  is  made 
by  wiil.^-*^  And  a  gift  by  name  to  one  who  had  married  tes- 
tator's daughter  was  held  to  be  a  sufficient  naming  of  such 
daughter.^^^ 

An  express  declaration  that  a  given  child  shall  have  no  part 
of  testator's  estate  is  a  sufficient  naming,^^^  as  is  a  devise  to 
testator's  wife  to  dispose  of  "with  reference  to  her  child  or  chil- 
dren," where  the  only  child  that  they  had  was  then  alive.^^^ 

A  recent  case  seems  at  variance  with  the  principle  just 
laid  down  in  the  text.     Testator  devised  all  his  estate  to  his 


314  Verrinder  v.  Winter,  98  Wis.  or  the  court  found  that  some  pro- 

287.  vision    had    been    made    for    them ) . 

3i5  0sborn  v.  Bank,   116  111.   130.  si?  Barker's  Estate,  5  Wash.  390. 

3i6  0sborn  v.  Bank,   116  111.   130;  sis  Wetherall    v.    Harris,    51    Mo. 

Leonard    v.    Enochs,    92    Ky.    186;  65. 

Minot.    Petitioner,    164    Mass.    38;  3i9  Woods  v.  Drake,  135  Mo.  393. 

Verrinder   v.   Winter,   98    Wis.    287  32o  Guitar  v.  Gordon,  17  Mo.  408. 

(in    these    cases    there    was    either  32i  Hockensmith    v.     Slusher,    26 

such   a   wording   of   the   will    as   to  Mo.  237. 

lend  color  to  the  inference  that  tes-  322  Block  v.  Block,  3  Mo.  594. 

tator  meant  to  exclude  his  children ;  32.s  Beck  v.  Metz,  25  Mo.  70. 


336  LAW    OF    WILLS. 

wife,  ''giving  my  said  wife  full  power  and  authority  to  col- 
lect all  debts,"  etc.,  and  "to  sell  any  and  all  of  my  estate, ' 
and  to  convey  the  same  '"as  fully,  amply  and  completely  as 
I  could  have  done  in  my  lifetime."  The  testator  then  had  two 
children;  a  third  was  born  in  two  months.  It  was  held  that 
the  intention  was  apparent  that  after-born  children  should 
not  take.^^^ 

§293.     What  is  a  provision  for  a  child. 

By  the  terms  of  these  statutes  a  child  for  whom  a  "pro- 
vision" is  made  is  not  included  among  those  who  may  take 
as  in  cases  of  intestacy.  Such  child-  can  take  what  the  will 
gives  it,  and  no  more.  It  is  often  important,  therefore,  to 
determine  what  is  a  "provision"  within  the  meaning  of  these 
statutes.^^^ 

The  "provision"  must  be  a  present  vested  interest  to  take 
immediate  effect  in  possession  upon  the  death  of  the  testator. 
A  vested  interest  in  futuro,  such  as  a  remainder  or  reversion, 
is  not  sufficient  "A  reversionary  interest,  whether  vested  or 
contingent,  is  not  a  provision  for  an  after-born  child  within 
the  words  or  spirit  of  the  statute."  ^^^ 

Thus,  a  devise  to  testator's  wife  for  life,  and  on  her  death 
to  the  heirs  of  her  body,  no  child  being  in  existence  when  the 
will  was  made,  is  no  "provision"  for  an  after-born  child.^-''' 

Where  testator  devised  property  to  his  wife  and  each  of 
his  children  then  living,  and  provided  that  the  residue  should 
be  divided  among  his  "surviving  children,"  it  was  held  that 

324Hawhe  v.  R.  R.  Ck).,   165  III  325  Clarkson    v.    Stevens,    106    U. 

561.  S.  505 :  Stevens  v.  Shippen,  1  Stew. 

In  this  case  the  court  laid  great  487  :  2  Stew.  602. 

stress  upon  the  fact  that  the  chil-  326  WiHard's    Estate,    68    Pa.    St. 

dren  already  born  were  disinherited,  327.    To  the  same  effect  are  Alden  v. 

as    showing    that    testator    did    not  Johnson,   63  To.   124:   Waterman  v. 

mean    to    provide    for    those    born  Hawkins,    63    Me.    156:    Rhodes    v. 

later.      It    assumes    to    distinguish  Weldy,  46  O.  S.  234 ;  Hollingsworth's 

the  earlier  cases  there  cited  which  Appeal.   51    Pa.   St.   518 :    Potter   v. 

support   the   text,    except   R.    R.    v.  Brown.   11   R.  I.  232. 

Wasseman,  which  it  refuses  to  fol-  327  Rhodes    v.    Weldy,    46    0.    S. 

low.  234. 


337 

I.AW    OF'  WILLS. 


a  posthumous  child  was  not  provided  for  withiu  the  meaning 
%t.  statute    nor  did  the  fact  that  the  residuary  clause 
was  l;  acl^nt  so  worded  as  to  include  such  child  show  a.^ 
intent  to  exclude  it  further.^^^  .     ,    ,,  a 

tmany  other  cases,  however,  this  view  is  held  unsound 
and  any  beneficial  gift  of  property,  either  m  the  nature  of  a 
"version  or  a  remainder,  is  a  "provision"  withm  the  mean- 

ino-  of  the  statute.^-  .« 

Thus  in  a  recent  case  testator,  knowing  that  h.s  wife  was 
pregnant,  left  his  pror^rty,  after  some  specific  f^'J<2 
of  which  were  to  such  untorn  child,  to  trustees,  to  pay  the 
entire  income  to  his  wife  during  her  life,  and  on  her  death 
the  reversion  "to  those  persons  who  if  my  death  occurred  at 
the  time  of  her  death  would  then  he  my  heir,  at  aw  hy 
blood."  It  was  held  that  a  provision  was  made  for  this  un- 
born child  within  the  meaning  of  the  statute."!'" 

So,  where  testator  provided  that  his  widow  sho"\^  -™  ^ 
bis  property  in  fee,  but  if  she  remarried  "her  heir      hould 
Z!l  third  of  the  property,  it  was  held  that  this  contingen 
remainder  either  was   a   provision  for   an   unborn  child   or 
Twed  an  intention  to  exclude  such  child  from  a  share  m    • 

testator's  will.^^^  ,    -, ,    mi 

So,  a  devise  of  testator's  real  estate  to  his  wife  to  hold  till 
his  youngest  child  ''if  any  be  born  to  me"  should  come  of 
ate  and  if  no  child  of  testator  is  alive  at  his  death  to  the 
:ff'e  absolutely,  is  an  implied  gift  to  the  children  when  the 

32.  Bowen  v.  Hoxie.  137  Mass.  527.  ently  testator  did  not  know  of  its 

s-gTJhoton  V   Blevin,  99  Cal.  645;  existence.                                       ,     •  i.^ 

3.9  Rhoton  V.  ^'         '                   (.  This  case  might  have  been  decided 

Hawhe  v.  Chicago  &  W.  1.  K.  »^o.,  j^'i                  s          „f  „ii  +vp  faoU 

ndvviit^                  o  showing,  m  view  of  all  the  lacts, 

iRc;  in    "ifil  •  Leonard  v.  Enochs,  J^  ^is  biiuwinoi 

Z  Is!  m.«t.  Petitioner.  164  -  i"'™"""  .'»  ^''"'f  J'*  mI  t 
mL  38  Verrinder  v.  Winter.  98  as  the  mtent.on  "«'»"»"  'f';,'^ 
r.-2S: ;  Don.es.  Estate.  .03  Wis.      --'^--r-  ^  rL'^- 

''IjoMinot.    Petitioner.    164    Mass.  sion    on    the    'P«'.«;    l^"-"    *"* 

3S.  c,istin,nisHing  Bowen  v^  Hoxie  ^l^^^^^^^^tt^:  ,,  wis. 

137  Mass.  527,  as  a  case  where  the  ^.i  veinnaer 

child   was   posthumous    and    appar-  287. 


338  LAW    OF    WILLS. 

youngest  comes  of  age,  and  is  a  "provision"  within  the  mean- 
ing of  the  statute.^^^ 

A  gift  to  the  surviving  spouse  ''and  his  heirs"  (or  "her 
heirs,"  as  tlie  case  may  be)  is  usually  held  neither  to  be  a 
provision  for  after-born  children  nor  to  show  an  intent  to 
exclude   them.'^^^ 

Since  the  word  "heirs"  in  this  connection  is  one  of  limit- 
ation, and  not  of  purchase,  the  children  of  the  surviving 
spouse  by  the  decedent  have  no  interest  under  the  will,  vested 
or  contingent,  and  are  very  clearly  not  provided  for. 

Where  the  surviving  spouse  is  a  second  wife,  so  that  chil- 
dren of  testator  by  his  first  wife  can  not  be  her  heirs,  a  gift 
to  her  and  her  heirs  is  no  provision  for  testator's  children  by 
his  first  wife.^'^^ 

A  gift  for  the  maintenance  and  support  of  after-bom  chil- 
dren during  their  minority  is  a  provision  for  them ;  ^^^  and 
a  devise  of  certain  land  in  a  county  named  is  a  "provision" 
for  the  beneficiaries,  even  if  at  the  time  of  making  the  will 
testatrix  did  not  own  any  land  in  such  countv.^^®  But  a 
gift  of  a  family  bible,  if  another  child  did  not  wish  it,  with 
the  privilege  of  selecting  some  books  and  clothing,  is  not  a 
provision  ;^^'^  nor  is  a  gift  of  one  dollar  to  each  of  the  heirs 
at  law  of  t-estator  a  provision.^^^ 

A  deed  to  a  divorced  wife  for  alimony  and  maintenance  of 
minor  children  is  not  a  provision,  especially  where  the  decree 
of  divorce  specifically  provides  that  this  deed  shall  not  affect 
the  interests  of  the  unborn  child.^^^ 


332Donges's  Estate.  10.3  Wis.  497 
333  Holloman  v.  Copeland,  10  Ga 
79;  Bancroft  v.  Ives,  3  Gray,  367 
Ramsdill  v.  Wentworth,  101  Mass 
125;  Potter  v.  Brown,  11  R.  I 
232:  Bower  v.  Bower,  5  Wash.  225; 


621  :     Jackson    v.    Jackson,    2    Pa. 
St.   212. 

336  Callaghan's    Estate,    119    Cal. 
571:    39   L.   R.  A.   689. 

337  Stebbins  v.  Stebbins,  94  Mich. 
304. 


Barker's   Estate,   5   Wash.   390.  338  Boman  v.  Boman,  49  Fed.  329, 

334  Thomas  v.  Black,   113  Mo.  66.       reversing   47    Fed.    849    (Wash.). 

335  Forbes    v.    Darling,    94    Mich.  339  Burns  v.  Allen,  93  Tenn.  149; 

23  S.  W.   111. 


LAW    OF    WILLS.  ^^^ 

§294.     Evidence.— How  intention  to  omit  must  be  shown. 

As  these  statutes  usually  apply  where  the  will  does  not 
make  a  provision  for  such  children  or  show  an  intent  not  to 
provide  for  them,  extrinsic  evidence  is  not  admissible,  either 
to  show  that  the  omission  was  intentional,=^^°  or  that  the 
omitted  children  were  otherwise  provided  for.^^^^  Nor  cau 
clauses  in  a  will  which  were  erased  before  execution  be  used 
to  show  that  the  omission  was  intentional.^^^ 

Where  the  statute  does  not  require  testator's  intention  to 
exclude  his  children  from  his  estate  to  appear  on  the  face  of 
the  will,  evidence  of  testator's  intention  to  provide  for  his 
children  or  not  to  do  so  may  be  shown  outside  the  will.^" 

§295.     Necessity  of  contest  by  omitted  children. 

As  those  statutes  make  testator's  will  absolutely  void,  as 
far  as  the  rights  of  the  child  or  children  protected  by  statute 
are  concerned,  it  is  not  necessary  that  such  child  contest  the 
will.  The  will  may  be  probated  without  contest,  and  yet 
treated  as  a  nullity  as  to  the  interests  of  such  cliild.^^-'^ 

340  Carpenter  v.  Snow.   117  Mich.  admitted  to  show  that  testator  had 

489-    41    L.   R.   A.   820;    Thomas   v.  disinherited  his  children  by  reason 

Black    113  Mo.  66;  Burns  v.  Allen.  of  a  mistake  of  law,  believing  that 

93  Te'nn.  149;   23  S.  W.  111.  his   wife   would   take   a   life   estate, 

».iHill   V     Hill,    7    Wash.    409.  citing     and     following     Lorings     v. 

34.Lurie    V.    Radnit^-.er,    166    111.  March.  6  Wall.  337;  Wilson  v.  Fos- 

609       (In   this   case   testator   made  ket,   6  Met.   400:    Bancroft  v.  Ives, 

a    provision    for    an    unborn    child.  3   Gray.    307;    Converse  v.   Wals,   4 

which    clause   he   erased   before   ex-  All.    512.    So    Carpenter    v.    Snow, 

ecution,  adding  a  certificate  to  the  117   Mich.  489;   41   L.  R.  A.  820. 

effect   that    the    erasure   was    made  Thus    in    Michigan,    intention    to 

with    his    approval.      It    was    held  exclude  children  in  existence  at  the 

that  as   such   erased  clause  formed  execution  of   the  will  need   not  ap- 

no    part    of    the   will,    and    as    tes-  pear   on   the  will,   but   intention   to 

tator's   intention  to   exclude  an   af-  exclude  children  not  in  existence  at 

ter-born   child   must  appear   on   the  he   execution   of   the   will   must  ap- 

face  of  the  will,  such  child  took  as  if  pear    on    the    will.      Carpenter    v. 

testator  died  intestate.  Snow,   117   Mich.  489;   41   L.  R.  A. 

343llamsdill    v.    Wentworth,    101  820. 

Mass    125.      (This  case  involves  dis-  344  Morse  v.  Morse,  42  Ind.   565; 
inheriting   children   alive   when   the-     Fallon    v.    Chidester,    46    lo^   588; 

will  was  made.     Parol  evidence  was  Evans   v.    Anderson,    15    O.    S.    324. 


340  LAW     OF     WILLS. 

This  is  upon  the  theory  that,  while  probate  establishes  the 
capacity  of  testator  and  the  due  execution  of  the  will,  it  does 
not  for  other  purposes  "establish  the  testamentary  character 
of  the  instrument  and  give  validity  to  a  title  based  upon 
it."  ^^^  Indeed,  it  is  held  that  these  children  can  not  have 
the  will  set  aside  even  if  they  bring  suit  for  that  purpose.^"*'' 

§296.     Effect  of  omission  upon  other  provisions  of  will. 

The  question  is  sometimes  raised  whether  provisions  of  a 
will  not  dispositive  in  their  nature,  such  as  the  appointment 
of  an  executor  or  the  creation  of  a  power  of  sale,  are  super- 
seded by  the  birth  or  existence  of  children  as  to  whom  the 
will  is  a  nullity. 

In  some  jurisdictions  it  seems  to  be  held  that  whether  the 
will  is  entirely  revoked,  or  is  merely  a  nullity  as  to  certain 
children,  no  provisions  of  the  will  have  any  force  as  against 
their  interests  by  descent.*"^^^ 

In  other  states  a  distinction  is  made,  and  where  the  will  is 
not  revoked  the  power  of  sale  or  the  appointment  of  an  ex- 
ecutor is  held  operative  as  to  their  interests.^^^  While  if  the 
facts  are  such  as  to  operate  as  a  revocation  of  the  will,  the 
power  of  sale  is  invalid.^^® 

345 1'allon    V.    Cihidester,    46    lo.  "The   will    stands,   except   so   far 

588.  as  the  disposition  of  property  under 

346  Barker's  Estate,  .5  Wash.  390.  it    is    disturbed    by    the    necessity 
Contra,  that  its  validity  may  thus  of  contribution  to  make  up  the  por- 

be   tested   at   once,   Meyers   v.    Bar-       tion     of     the     posthumous     child." 
row,   3  Ohio   C.   C.   91.  Wilson    v.    Fritts,     32    X.    J.    Eq. 

347  Smith    V.    Olmstead,    88    Cal.      59. 

582  :   12  L.  R.  A.  46.     ( In  this  ease  349  Smith   v.   Robertson,   24   Hun, 

a  power  of  sale  was  held  ineffective  210;  89  N*.  Y.  555. 

as   to  the   shares   of   omitted   child,  Whether  the  subsequent  birth  of 

neither  named  nor  provided  for  by  a   child  revokes  a  prior  will  of  its 

will.)  parent,   or   only  secures   the   child's 

348  Van  Wickle  v.  Van  Wickle,  share  of  the  estate  independent  of 
X.  J.  Eq.  — ,  1899;  44  Atl.  877  ;  Wil-  the  will  is,  of  course,  purely  a  ques- 
son  V.  Fritts,  32  X.  J.  Eq.  59 ;  tion  of  the  wording  and  meaning  of 
Coates    V.    Hughes,    3    Binn.    (Pa.),  the    statute. 

498. 


841 

LAW     OF     WILLS. 


An  appointment  of  a  guardian  for  testator's  minor  children 
was  not  avoided  by  the  subsequent  birth  ol  a  child. 

It  will  be  noticed  at  once  that  statutes  of  the  second  c  ass 
effect  only  a  partial  revocation;  while  statutes  of  the  third  class 
do  not  effect  a  revocation  at  all.  A  discussion  of  statutes  of  the 
third  class  in  this  chapter  is  therefore  illogical.  But  a  sep- 
arate discussion  of  them  would  necessitate  a  repetition  of  the 
discussion  of  what  is  a  provision,  what  is  a  naming,  and  what 
shows  testator's  intention  Uy  exclude  children  from  a  share  m 
his  estate;  and  to  save  space,  therefore,  this  topic  is  taken  up 
out  of  its  order. 

350  Hollingsworth  v.  Hollingsworth,    51    Pa,    St.    318. 


342  LAW    OF     WILLS. 


CHAPTER  XV. 

ALTERATION    AND    PARTIAL   SPOLIATION. 

§297.     General  principles. 

Since  revocabilitv  is  an  essential  and  inherent  element  of  a 
valid  will,  the  testator  has  fnll  and  absolute  power  to  revoke 
and  alter  his  will  as  he  sees  fit.^  It  is  further  clear  that  no 
one  else  has  any  right  to  alter  the  will  of  testator  without  his 
consent  and  authority.^ 

The  general  principles  being  well  settled,  the  practical  ques- 
tions presented  to  the  courts  for  adjudication  concern  the 
practical  effect  of  such  changes  in  the  will  when  actually  made. 

§298.     Definition   of   alteration. 

Alteration  is  a  change  in  the  words  of  a  will,  by  addition, 
or  erasure,  or  both,  made  by  testator,  or  some  one  acting  under 
his  authority,  after  the  execution  of  the  will.^  Changes  made 
in  the  wording  of  a  will  before  execution  are  not  included  in 
this  definition,  since  such  changes  become  by  execution  an  in- 
tegral part  of  the  will.* 

§299.     Effect  of  alteration. 

Under  our  modem  statutes  an  alteration  made  by  testator 

^Sec.  50.  8    L.   R.    A.    38.3:    Simreirs   Estate, 

2  Sec.  300.  154  Pa.  St.  004. 


sFfinch  v.  Combe  (1894)  P.  191 
Hesterberg  v.  Clark,  166  111.  241 
Grardiner  v.  Gardiner,  65  N.  H.  230 


4Liirie  v.  Radnitzer,  166  111.  609; 
Wright  V.  Wright,  5  Ind.   389. 


LAW     OF     WILLS.  ^^^ 

in  his  will  a-fter  execution  is  of  no  effect  whatever,  unless  the 
will  has  subsequently  been  re-executed  or  republished.  The 
part  inserted  is  treated  as  if  it  did  not  exist.  The  part 
stricken  out  is  treated  as  if  it  were  still  part  of  the  will.^  But 
a  correction  of  an  error,  as  in  the  name  of  an  executor,  does 
not  invalidate  the  will  in  whole,  or  in  part.*^ 

There  are  two  exceptions  to  this  general  rule:  First,  in 
those  states  where  partial  revocation  is  allowed,  an  alteration 
in  the  will  may  take  effect  if  it  merely  takes  from  the  pro- 
visions of  the  will,  though  it  can  not  be  given  effect  where  it 
adds  to  them  unless  the  will  is  after^vards  re-published."^ 
Second,  where  it  is  impossible  either  from  the  will  itself  or 
from  extrinsic  evidence  to  determine  the  words  which  were 
erased  or  stricken  out,  such  words  must  be  disregarded,  and 
the  will  probated  with  such  clauses  blank.^ 

The  effect  of  republication  upon  alterations  in  a  will  after 
execution  is  discussed  under  the  subject  "Republication."  ^ 


§300.     Definition  of  spoliation. 

Spoliation  is  a  change  in  the  wording  of  a  will,  made  after 
execution  by  one  who  is  neither  the  testator  nor  is  authorized 
by  him.  The  word  is  also  used  of  the  destruction  of  a  will  by 
some  one  other  than  testator  or  one  authorized  by  him.  This 
branch  of  the  subject  is  treated  under  the  head  of  Lost  and 
Spoliated  Wills.^^    Spoliation  is  often  called  alteration.     The 

sFfinch  V.  Combe   (1894)  P.  191;  man,   88   N.   Y.    377;    Lang's   Will, 

Brasier's  Estate    (1899),  P.  36;   68  61    N.   Y.   S.   675;    30   N.   Y.   Supp. 

L.  J.  P.  D.  &  A.  N.  S.  6;  In  re  Law-  388;    Simrell's   Estate,    154   Pa.   St. 

son     25   N.    S.   454 ;    Hindmarsh   v.  604 ;     Stover    v.    Kendall,     1    Cold. 

Charlix)n.  8  H.  L.  Cas.  160 ;  Goods  of  (Tenn.)   557  :  Varnon  v.  Varnon,  67 

Madlock,    L.    R.    3    P.    &    M.    169;  Mo.  App.  534.        ^ 

Tyler  v.  Merchant  Tailor  Co.  L.  R.  6  Lang's  Will,  61   N.  Y.   S.  675; 

15    Prob.    D.    216:     Hesterberg    v.  30  N.  Y.  Supp.  388. 

Clark,  166  111.  241 :  Camp  v.  Shaw,  ^  See  Sec  254. 

52   111    241,   affirmed,   163  111.   App.  »  See  Sec.  254. 

144:   Doane  v.   Hadlock,  42  Me.  72  »  See    Chap.    XVI,    Republication. 

Gardiner  v.  Gardiner.  65  N.  H.  230;  lo  See  also  Sec.  261 ;  See  Sec.  434 

8    L.    R.    A.    383;    Lovell    v.     Quit-  et  seq. ;  Sec.  347,  et  seq. 


344  LAW     OF     WILLS. 

names  are  not  always  kept  distinct,  but  the  principles  controll- 
ing the  two  are  rarely  confused.^  ^ 

§301.     Effect  of  spoliation  by  a  stranger  to  the  will. 

The  effect  of  a  spoliation  depends  upon  who  changed  the 
will  or  caused  it  to  be  changed.  If  a  stranger  to  the  instru- 
ment changed  it,  such  spoliation  is  a  nullity.  The  part  in- 
serted by  the  stranger  is  disregarded.  The  part  erased  by 
him  is  to  be  read  as  it  was  originally  written,  if  it  is  possible 
either  from  the  will  itself  or  from  extrinsic  evidence  to  de- 
termine the  words  originally  employed.?^ 

§302.     Effect  of  spoliation  by  a  beneficiary. 

But  where  a  beneficiary  .under  a  will  alters  a  provision  in 
such  will,  it  avoids  the  provision  thus  altered  as  far  as  his  in- 
terest is  concerned.  Tt  does  not,  however,  avoid  the  interests 
of  other  beneficiaries  not  parties  to  the  spoliation,  nor  does  it 
avoid  other  provisions  in  the  same  will  in  favor  of  the  spoliator 
not  altered  by  him.^^ 

The  foregoing  proposition  is  amply  sustained  by  authority 
where  the  spoliation  is  material.  But  where  it  is  immaterial 
it  has  been  held,  in  the  absence  of  evidence  showing  additional 
reasons  for  avoiding  a  bequest  to  the  spoliating  beneficiary^ 
that  the  will  should  not  be  affected  in  any  way  by  such  im- 
material alteration.' ■* 

11  Miles's  Appeal.  68  Conn.  237 ;  72 :  Thomas  v.  Thomas.  76  Minn 
Thomas  v.  Thomas,  76  Minn.  237.  237. 

12  Miles's  Appeal,  68  Conn.  237:  In  Wilson's  Will,  8  Wis.  171,  it 
Camp  V.  Shaw,  163  111.  144,  affirm-  was  laid  down  as  a  general  proposi- 
ing  5z  111.  App.  241 :  Doane  v.  Had-  tion  that  any  alteration  in  a  will 
lock,  42  Me.  72; 'Thomas  v.  Thom-  avoided  the  whole  will.  But  in  that 
as,  76  Minn.  237  ;  Holman  v.  Rid-  case  the  evidence  made  it  very  prob- 
dle,  8  O.  S.  384;  Widdowson's  Es-  able  that  the  beneficiary  had  al- 
tate,  189  Pa.  St.  338;  41  Atl.  977;  tered  it,  and  the  observations  of 
Grubbs  v.  McDonald,  91  Pa.  St.  the  court  are  probably  confined  to 
236;    Means    v.    Moore,    3    McCord,  those  facts. 

282.  i4McIntire   v.   Mclntire,   8   Mack- 

13  Smith   v.   Fenncr.,   1   Gall.    (U.       ey   (D.  C.)   482. 
S.)    170;   Doane  v.  Hadlock,  42  Me. 


LAW    OF    WILLS.  345 


CHAPTER  XVI. 

REPUBLICATION. 

§303.     Definition. 

Republication  is  any  act  which  gives  new  validity  in  law, 
as  of  the  date  of  republication,  to  a  will  which  has  already 
been,  executed.-^ 

§304.     History  of  law  of  republication. 

At  the  common  law,  in  the  absence  of  statute,  it  was  held 
that- no  set  form  was  necessary  to  constitute  republication. 
It  was  not  necessary  that  any  writing  be  made,  nor  was  sig- 
nature by  testator  necessary.  The  only  requisites  to  a  good  re- 
publication were  that  testator  should,  by  his  acts  and  words, 
recognize  the  will  as  being  in  full  force  and  effect.^ 

Thus,  in  cases  where  the  testator  had  kept  the  will  after 
revocation,  and  had  spoken  of  it  as  his  will  and  had  referred 
to  it  as  suiting  him,  it  was  held  that  these  acts  amounted  to 
a  republication.^  And  at  the  common  law  the  mere  fact  of 
keeping  the  will  among  valuable  papers  might,  without  fur- 
ther acts,  amount  to  a  republication."* 

1  Whiting's  Appeal,  67  Conn.  379.  3  Miller  v.  Brown,  2  Hagg,  209; 

2Alford   V.    Earle,    2   Vern.   209;  Braham   v.    Burchell,    3   Add.    243; 

Long  V.  Alfred,   3  Add.  48 ;   Abney  Brotlierton   v.   Hellier,   6   Eng.  Ecc. 

V.   Miller,   2   Atk.   593   so   in   Penn-  Cas.  33. 

sylvania    before    1833;     Havard    v.  4  Braham  v.  Burchell,  3  Add.  243. 
Davis,    2    Binn.    (Pa.)    406;    Jones 
V.  Hartley,  2  Whart.  103. 


346  LAW    OF    WILLS. 

Tiie  republication  of  a  will  once  revoked  was  thus  entirely 
a  matter  of  parol  evidence  of  the  intention  of  the  testator. 
The  law  was  reduced  to  such  an  unfortunate  condition  that 
Parliament  interfered,  and  in  the  Statute  of  Frauds,  29  Car. 
II,  ch.  3,  abolished  these  rules  as  to  wills  of  lands,  and  required 
that  wills  of  realty  could  be  republished  in  no  manner  except 
by  formal  re-execution,  or  by  a  properly  executed  codicil.  This 
statute  did  not  make  any  change  in  the  law  of  republication  of 
testaments  of  personalty,  and  they  could  be  republished  by  the 
acts,  conduct  and  declarations  of  testator  as  before.^ 

§305.     Modern  statutes. 

In  the  United  States  statutes  were  passed  at  different  times 
during  the  present  century  and  the  latter  part  of  the  last 
century  which  abolished  the  common  law  rules  on  the  subject 
of  republication,  and  substituted  for  them  the  general  prin- 
ciples of  the  Statute  of  Frauds.  Wills  can  not  henceforth 
in  such  jurisdictions  be  republished  except  by  a  compliance 
with  the  statute;  and  the  statute  in  most  states  calls  for 
either  re-execution  of  the  will  itself,  with  the  same  formal- 
ities as  those  necessary  for  the  execution  of  a  new  will,  or 
such  reference  to  it  in  a  properly  executed  codicil  as  will  in- 
corporate it  therein.^ 

Under  such  statutes  the  acts  of  keeping  the  revoked  will 
and  speaking  about  it  as  a  will  do  not  effect  a  republication.^ 

§306.     Methods  of  republication. — Re-execution. 

While  under  the  modern  statutes  a  will  is  no  longer  subject 
to  republication  by  testator's  keeping  such  document  in  his 
possession  after  revocation,  speaking  of  it  as  his  will  and  the 
like,^  and  in  most  states  these  statutes  apply  to  both  wills  and 

5  Long  V.  Aldred,  3  Add.  48 ;  Mil-  Mitchell  v.  Kimbrough,  98  Tenn. 
ler    V.    Brown.    2    Hagg.    209.  535,  and  see  In  re  Smith,  L.  R.  45 

6  Barker  v.  Bell,  46  Ala.  216:   49       Ch.   D.   632. 

Ala.  284 ;  Stewart  V.  Mulholland,  88  «  Battle  v.    Speight,   9   Ired.    (N. 

Ky.  38;   Stickney's  Will,  161  N.  Y.  Car.)    288;   Mitchell  v.  Kimbrough, 

42.  98   Tenn.    535;    Warner  v.   Warner, 

7  Stickney's  Will,   161   N.   Y.   42;  37  Vt.   356. 


LAW    OF    WILLS. 


347 


testaments,  there  are  still  some  states  in  wkich  a  testament 
of  personalty  may  be  republished  by  the  words  and  acts  of 
the  testator. 

The  methods  of  republication  prescribed  by  our  mod- 
ern statutes  are  two:  re-execution  and  by  codocil.  Re- 
execution  must  be  had  with  all  the  formalities  necessary  for 
original  execution.^  'No  further  formalities,  however,  are  nec- 
essary. Thus,  in  Pennsylvania,  where  execution  before 
two  witnesses  is  necessary,  but  they  need  not  subscribe  the 
will,  it  IS  sufficient  in  republication  for  testator  to  declare  the 
instrument  to  be  his  will  before  the  requisite  number  of  wit- 
nesses. Thus,  a  testator  may  acknowledge  his  signature  be- 
fore the  witnesses  in  republication  instead  of  making  a  new 
signature,  since  the  statute  gives  him  that  privilege  in  orig- 
inal execution.  But  the  witnesses  can  not  acknowledge  their 
signatures,  since  the  statute  gives  them  no  such  permission.^® 
They  must  sign  the  instrument  once  more  in  the  presence  of 
testator,  and  at  his  request,  just  as  in  original  execution. 

§307.     Methods  of  re-execution. — Codicil, 

A  properly  executed  codicil  which  is  attached  to  a  will,^^ 
or  which  refers  to  it  specifically,  as  by  its  date  and  contents,^^ 
acts  as  a  republication  of  the  will  as  of  the  date  of  the 
codicil.^  ^ 

There  is  one  very  obvious  exception  to  the  doctrine  that 
a  valid  codicil  republishes  the  will  of  which  it  is  a  part. 
Where   holographic  wills   are  recognized,    a  holographic   un- 

9  Jackson  v.  Holloway,  7  Johns.  vey  v.  Chouteau,  14  Mo.  587;  Bar- 
(N.  Y.)  394:  Havard  v.  Davis,  2  ney  v.  Hayes,  11  Mont.  571;  Gass  v. 
Binn.     (Pa.)    406;    Jones    v.    Hart-       Gass,  3  Humph.   (Tenn.)  278. 

ley,  2  Whart.   (Pa.)   103 ;  NeflF's  Ap-  i3  Shaw    v.    Camp,    163    111.    144; 

peal,  48  Pa.  St.  509.  Pope   v.    Pope,    95    Ga.    87;    Hawke 

10  O'Neill  V.  Owen,  25  Conn.  L.  J.  v.  Euyart,  30  Neb.  149 ;  Gilmer's  Es- 
376:   9  Conn.  L.  T.  297.  tate,   1.54  Pa.  St.  523;   Baker's  Ap- 

11  Barnes  V.  Crowe,  1  Ves.  Jr.  485;  peal,  107  Pa.  St.  381;  Skinner  v. 
Shaw  V.  Camp,  1G3  111.  144;  Ho-  American  Bible  Society,  92  Wis. 
bart  V.  Hobart,  154  111.  610,  209:  BrovATi  v.  Clark,  77  N.  Y.  369; 

12  Pope  V.  Pope,  95  Ga.  87;  Ho-  Vogel  v.  Lehritter,  139  N".  Y.  223. 
bart  V.  Hobart,   154   111.  610;   Har- 


348  LAW     OF     WILLS. 

attested  codicil  does  not  republish  a  previously  executed  will 
not  in  the  handwriting  of  testator.^  ^ 

An  improperly  executed  codicil  has  not,  of  course,  the  effect 
of  republishing  a  will;^^  and  where  the  codicil  refers  to  a 
will  already  revoked  in  such  a  manner  as  to  show  that  tes- 
tator does  not  intend  to  revive  this  will,  there  is  not  repub- 
lication.^^ 

Thus,  a  reference  to  a  revoked  codicil  by  inserting  in  a 
subsequent  codicil  the  statement  that  "my  two  sisters  named 
in  my  codicil  of are  both  dead"  did  not  revive  the  cod- 
icil referred  to.^^ 

In  some  jurisdictions,  by  statute,  a  codicil  does  not  revive 
a  will  once  revoked  unless  such  intention  shall  expressly  ap- 
pear on  the  face  of  the  codicil,  or  unless  the  disposition  of 
the  estate  in  such  codicil  is  inconsistent  with  any  other  in- 
tent than  that  of  republishing  the  will.^** 

§308.     General  effect  of  republication. 

The  effect  of  republication  of  a  will  is  to  make  it  in  legal 
effect  a  valid  will  as  executed  at  the  time  of  such  re-publication, 
and  speaking  as  of  such  time.^^  But  while  the  execution  of 
a  codicil  republishes  the  original  will,  it  docs  not  prevent  the 
ademption  of  specific  legacies  given  therein,  nor  does  it  make 
valid  such  as  have  been  adeemed.^"  But  where  a  general  leg- 
acy was  adeemed  by  payment  in  whole  or  in  part,  it  was  held 
that  such  legacy  was  revived  by  a  subsequent  will  giving  a 
legacy  of  the  same  amount  to  the  same  legatee,^^  or  by  a  codi- 
cil republishing  the  will.^^ 

14  Sharp  V.  Wallace,  83  Ky.  584.  ney  v.  Hayes.  11  Mont.  571:  Hawke 

15  Vestry  of  St.  John's  Parish  v.  v.  Euyart,  30  Neb.  149;  27  Am. 
Bostwick,  8  App.  D.  C.  452 ;  Love  v.  St.  Rep.  391 ;  Gilmor's  Estate,  154 
Johnston.    12    Ired.    L.     (N.     Car.)  Pa.    St    523. 

355;    Dunlap  v.  Dunlap,  4  De  Saus  aoTanton  v.  Keller,   167   111.   129, 

(S.  Car.)   305.  aff.  61   111.  App.  625,  citing  Payne 

16  Zn  re  Dennis  (1891)   Prob.  326.  v.  Parsons,  14  Pick.  318;   Richards 
17 /n.    re     Dennis     (1891),    Prob.  v.  Humphreys,  15  Pick.  133;  Lang- 

326  don  v.  Astor,   16  N.  Y.  57;   Hawzo 

IS  Madonnell   v.   Purcell,   23   Can.  v.  Mallet,  4  Jones  Eq.  194. 

Sup.  101.  21  Jacques   v.    Swasey,    153   Mass. 

19  Whiting's    Appeal,     67      Conn.  596;    12  L.  R.  A.  566. 

379;  Pope  v.  Pope,  95  Ga.  87;  Bar-  22  Bird's  Estate,   132  Pa.  St.   164. 


349 

LAW    OF     WILLS. 


§309.     Application  of  the  doctrine  of  republication—After  ac- 
quired  realty. 
At  commmL  law  the  doctrine  of  republication  was  one  of 
Z  .Zort^nce     We  have  already  seen  that  at  common  law 

great  mipoitance.     v»  after-acqnired  realty  no 

:r:r:"M^—  r.-.,..  ^.-  RepuhU^Uon 
Tadtthe  .viU  in  legal  effect  as  of  tie  date  of  ^e-pu^^^- 
tion  and  not  of  the  date  of  the  will.  Thus  if  the  will  at 
l^ted  to  devise  land  which  the  testator  did  not  ow  at  the 
artf  tt  execution  of  the  will,  but  which  he  had  acquired 
Irlrd,  and  before  republication,  republication  would 
make  the  will  good  to  pass  the  title  t«  such  land.- 

Thi  application  of  the  doctrine  of  republication  has  lost 
mol  of  il'  importance  since  statutes  ha.e  een  P^sed  a  low- 
ing a  testator  to  devise  after-acquired  realty  by  will,  if 

'  £      t-  25 

intention  so  to  do  is  manifest. 

§310.     Eevivor  of  prior  revoked  will. 

The  doctrine  of  republication  is  still  of  great  practical 
importance  when  a  will  once  properly  executed  has  been  re- 
vled  and  it  is  sought  to  show  that  it  has  been  again  put  in 
-farce  bv  republication.  „       ^   , 

Whet  a  will  is  revoked  by  the  execution  of  a  lat.r  incon- 
sistent will,  which  contains  no  clause  of  express  r6vo<,ation 
Thave  se^n  that,  by  the  weight  of  ^o^-  -th»ri  5-,  ^ 
revocation  of  the  second  will  leaves  Ae  first  in  full  force 
and  effect  without  any  republication. 

The  reason  underlying  this- rule  is  that  the  -^sj-  - 
consistent  will,  since  it  does  not  contain  a  c  ause  of  express 
revocation,  does  not  work  a  revocation  at  all  until,  by  the 
death  of  testator,  it  takes  effect.  Up  ^  that  time  .^  de- 
struction prevents  it  from  ever  taking  effect  either  as  a  d.s 
position  of  property  or  negatively  by  way  of  revocation. 

„       „        ,.,  !5Sce  Sec.  142. 

»,See  Seo.   142.  .6  Pickens    v.    Davis,    134    Ma»8. 

«;„     re     Champion      (C       A.)  ^^^   ^.^^ 

(IRtni     1    Ch.    101;     Reynolds     v.      25.:.    cneevei    ^-  ' 

Shirley,  7  Ohio,  2d  part,  39. 


850  LAW    OF     WILLS. 

But  where  the  will  was  revoked  in  any  other  manner,  as 
bj  some  act  manifest  on  the  face  of  the  instrument,  such  as 
tearing,  destroying  and  the  like,  or  by  a  change  of  circum- 
stances, or  by  the  execution  of  a  later  will  containing  a  clause 
of  express  revocation,  it  must,  under  most  modern  statutes, 
be  republished  as  provided  for  in  the  statute.^^ 

§311.     Re-execution  cures  a  defectively  executed  will. 

Republication  is  also  still  of  practical  importance  when 
the  will  sought  to  be  revived  by  republication  is  defectively 
executed,  or  was  executed  when  testator  had  not  capacity  in 
law  to  make  a  will.  In  such  a  case  if  the  will  is  republished, 
as  required  by  statute,  it  is  valid,  no  matter  what  defects  may 
have   originally  existed   in   its   execution.^^ 

Improperly  executed  codicils  annexed  to  a  will  are  repub- 
lished by  a  subsequent  codicil  properly  executed,  which  refers 
to  the  whole  will,  including  the  codicjls.^^  But  where  the 
second  codicil  covers  the  same  ground  as  the  first  codicil,  and 
is  inconsistent  therewith,  it  is  held  to  be  a  substitute  for  the 
first  and  not  a  republication ;  ^^  and  the  omission  of  all  ref- 
erence to  a  pre-existing  codicil  may,  in  connection  with  other 
facts  and  circumstances,  show  an  intention  not  to  republish 
such  codicil.^^  So,  where  the  original  will  was  executed 
when  testator  did  not  possess  testamentary  capacity,'^^  or  was 
constrained  to  execute  the  will  by  undue  influence,''^   subse- 

27Chilcott's    Estate       (1897)      P.  223:  66  L.  .T.  P.  108  Shaw  v.  Camp, 

223;       60      L.    J.    P.    108:    Brown  163  111.  144;  36  L.  R.  A.  112.  affiim- 

V.    Clark;     77    N.    Y.    369;     Kurt;^  ing    52    111.    App.    241;     Walton's 

V.   Saylor,  20  Pa.   St.  205.  Estate,  194  Pa.  St.  528. 

28  Burge  V.  Hamilton,  72  Ga.  568  :  so  Chichester        v.        Quatreiages 

In  re  Murfield,  74  lo.  479;   Harvey  (1895)    P.    186. 

V.  Chouteau.  14  Mo.  587 ;  Barney  V.  3i  McLeod    v.     McNab      (P.     C.) 

Hays,    11    Mont.    571:    McCurdy   v.  (1891)    A.  C.  471. 

Neall.  42  N.  .1.  Eq.   333:   Stover  v.  32  Brown   v.   Riggin.   94   111.   560; 

Kendall.    1    Coldw.     (Tenn.),    557;  Gass    v.    Gass,    3    Humph.     (Tenn.) 

Skinner  v.  American  Bible  Society,  278. 

92  Wis.  209.  33  Campbell  v.  Barrera  (Tex.  Civ. 

29Chilcott's     Estate      (1897)      P.  App.)    32  S.  W.  724. 


LAW    OF    WILLS. 


351 


quent  republication,  when  testator  is  free  from  these  dis- 
abilities, will  make  the  will  valid.  So,  where  a  will  has  been 
altered  after  execution  a  subsequent  republication  will  give 
effect  to  the  will  including  these  alterations.^* 

Where  the  prior  will  was  intended  to  incorporate  an  extrinsic 
instrument,  and  was  so  drawn  as  to  fail  in  this  attempt  by 
reason  of  a  lack  of  some  element  necessary,  there  is  no  doubt 
that  a  subsequent  codicil  may  so  refer  to  the  document  as  to 
incorporate  it.  But  if  the  codicil  and  will  taken  together  do 
not  so  refer  to  the  extrinsic  document  as  to  incorporate  it,  the 
fact  that  the  codicil  republishes  the  will  does  not  make  valid 
the  original  invalid  attempt  to  incorporate.^^ 

Thus,  where  the  will  spoke  of  the  funds  to  be  used  in  cre- 
ating a  trust  as  those  which  the  trustees  would  find  noted  by 
the  testator,  and  this  noting  consisted  in  writing  out  a  list  of 
the  funds  to  be  applied  in  trust  after  the  will  was  executed, 
it  was  held  that  a  subsequent  codicil  confirming  the  will  did 
not  effect  an  incorporation  of  this  document  in  the  will,  since 
the  will  did  not  refer  to  it  as  in  existence  at  the  date  that  the 
will  was  made,  and  the  codicil  did  not  attempt  to  incorporate 
it.36 

34Goods  of  Heath   (1892)   P.  253;  66:  6  Rep.  582;  Goods  of  Reid,  38  L. 

Shaw  V.  Camp,  163  111.  144,  affirm-  J.  P.  1. 
ing    52    111.    App.    241.  -le  Durham    v.    Northern     (1895), 

35  Durham  V.  Northern  (1895)  P.  Prob.  66. 


362  LAW    OF    WILLS. 


CHAPTER  XVII. 

PROBATE   AND    CONTEST. 
§312.     History  and  general  nature. 

At  common  law  there  was  nothing  corresponding  to  probate 
in  case  of  a  will  devising  real  property.  If  testator  died 
leaving  a  valid  will,  it  went  into  force  and  effect  at  once  mth- 
out  any  fnrther  formalities.  If  any  qnestion  arose  as  to  the 
validity  of  the  will  as  a  muniment  of  title  to  the  realty  de- 
vised it  was  proved  in  the  ejectment  or  partition  suit,  whereby 
the  title  to  the  real  estate  was  being  tested,  just  as  a  deed 
would  be  proved,  allowing  for  the  difference  in  the  nature 
of  the  two  instruments  and  the  formalities  of  execution.^ 

At  ecclesiastical  law  testaments  bequeathing  personalty 
were  required  to  be  probated  after  the  death  of  testator  as  a 
prerequisite  to  their  taking  effect  in  law.  There  were  two 
kinds  of  probate  at  the  ecclesiastical  law:  probate  "in  the  com- 
mon form"  and  probate  "in  the  solemn  form,"  or  "in  the 
form  of  law,"  or  "per  testes."  Probate  in  the  common  form 
was  an  ex  parte  proceeding  without  notice  to  the  next  of  kin. 
Probate  in  the  solemn  form  was  a  proceeding  upon  citation 
of  all  persons  interested,  and  upon  full  proof  by  witnesses 
for  and  against  the  will.^ 

1  Kirk  V.  Bowline-,  20  Neb.  260:  emn  form,  in  which  all  the  parties 
Floyd   V.   Herrincr.   64   N.   Car.   409.  interested   were   cited   to   appear   at 

2  "At  common  law  there  were  two  the  time  of  probate,  and  in  which 
modes   of  proving  a  will :    The  sol-  the  order  admitting  the  will  to  pro- 


LAW     OF     WILLS. 


353 


In  tracing  the  origin  of  their  probate  jurisdiction,  many 
of  the  American  courts  have  discussed  in  more  or  less  detail 
the  history  of  the  English  law.^ 

In  England  the  distinction  between  the  probate  of  wills 
and  of  testaments  was  expressly  abolished  by  statute  in  1857, 
and  since  that  date  both  must  be  probated.^ 

In  the  United  States  the  distinction  between  wills  and 
testaments,  as  to  the  necessity  of  probating  each,  was  recog- 
nized by  a  few  states  in  earlier  cases,^  and  is  persisted  in  in 
some  jurisdictions  still.^ 

In  E^ew  York  probate  is  "presumptive  only"  as  to  wills 
devising  realty,"^   but  in  practically  all  the  American   states 


bate  was  conclusive  upon  all  par- 
ties so  cited  unless  fraud  or  col- 
lusion could  be  shown ;  and  the 
common  form,  in  which  the  will  was 
proved  and  admitted  to  probate  ex 
parte,  without  citation  to  any  one, 
and  in  which  the  probate  could  be 
called  in  question  by  interested  par- 
ties, and  the  executor  required  to 
repropound  the  will  de  novo  by 
original  proof  in  the  same  manner 
as  if  no  probate  thereof  had  been 
had.  Both  of  these  modes  have 
been  adopted  in  several  of  the  states 
by  statute,  but  in  this  state  the 
common  form  is  the  only  one  which 
has  been  adopted.  Hubbard  v.  Hub- 
bard, 7  Oreg.  42." 

Malone  v.  Cornelius,  34  Oreg. 
192;  55  P.  536;  Luper  v.  Werts,  19 
Oreg.  122. 

3  Tompkins  v.  Tompkins,  1  Story 
(U.  S.)  547);  Knox  v.  Paull.  95 
Ala.  505;  Luther  v.  Luther,  122 
111.  558;  Mears  v.  Mears,  15  O.  S. 
90 ;  Domestic  Missionary  Society  v. 
Eells,  68  Vt.  497;  Keene  v.  Corse, 
80  Md.   20. 

*  Stats.   20  and  21   Vict.   C.   77. 


s  Waters  v.  Waters,  35  Md.  531; 
Bell  V.  Newman,  5  S.  &  R.  (Pa.) 
78 ;  Brown  v.  Gibson,  1  Nott  &  McC. 
(S.  Car.)    326. 

6  Webb  V.  Janney,  9  App.  D.  C. 
41;  Perry  v.  Sweeny,  11  App.  D.  C. 
404,  disapproving  Barbour  v.  Moore, 
4  App.  D.  C.  535,  citing  Tompkins 
V.  Tompkins,  1  Story,  542;  Harri- 
son V.  Rowan,  3  Wash.  C.  C.  580; 
Den,  Thomas  v.  Ayres,  13  N.  J.  L. 
153;  Smith  v.  Bonsall,  5  Rawle, 
80;  Rowland  v.  Evans,  6  Pa.  St. 
435;  Crosland  v.  Murdock,  4  Mc- 
Cord  Law.  217;  Parker  v.  Parker, 
11  Cush.  519;  Ballow  v.  Hudson,  13 
Gratt.  672;  Hume  v.  Burton,  1 
Ridgw.  P.  C.  277 ;  Montgomery  v. 
Clark,  2  Atk.  379;  Massey  v.  Mas- 
sey,  4  Harr.  &  J.  141 ;  Warford  v. 
Colvin,  14  Md.  532;  Johns  v. 
Hodges,  62  Md.  525;  Darby  v. 
Mayer,  10  Wheat.  (U.  S.)  465; 
Robertson  v.  Pickrell,  109  U.  S. 
608  ;  Campbell  v.  Porter,  162  U.  S. 
478;  White  v.  Keller,  68  Fed.  796 
7Corley  v.  McElmeel,  149  N.  Y. 
228 ;  so  in  Florida,  Belton  v.  Sum- 
mer, 31   Fla.  139. 


354  LAW    OF    WILLS. 

today  wills  and  testaments  alike  must  be  probated  as  a  pre- 
requisite to  their  validity.^ 

Probate  may  be  defined  as  the  solemn  judicial  act  of  an 
officer  authorized  by  law  adjudging  and  decreeing  that  the 
instruments  offered  to  be  proved  or  recorded  as  the  last  will 
and  testament  of  deceased  is  such  last  will  and  testament.* 
The  word  "probate"  is  often  so  used  as  to  include  the  offering 
of  proof  before  such  authorized  officer;  and  even  the  entire 
judicial  proceeding  which  results  in  the  admission  of  the  will 
to  probate. 

The  different  states  of  the  Union  have  statutes  upon  the 
subject  of  Probate,  differing  widely  in  form,  and  yet  in  most 
cases  strikingly  alike  in  all  essentials. 

There  is  always  an  opportunity  given  for  probating  a  will 
in  an  ex  parte  proceeding  before  the  court  having  such  ju- 
risdiction in  what  is  practically  the  old  ecclesiastical  "pro- 
bate in  common  form." 

In  this  proceeding  only  those  witnesses  offered  by  the  par- 
ties interested  in  having  the  will  admitted  to  probate  may 
testify.  Is'o  chance  is  given  to  those  opposing  the  admission 
of  the  will  to  probate  to  adduce  any  evidence  to  support  the 
issues  on  their  side,  though  they  may  cross  examine  the  wit- 
nesses offered  by  those  who  are  interested  in  having  the  will 
admitted  to  probate.^'' 

Probate  in  the  common  form  is  usually  said  to  be  an  ex 
parte  proceeding.  This  is  a  term  which  is  used  by  the  courts 
in  two  distinct  senses.  In  some  states  it  means  only  that  the 
parties  opposed  to  the  admission  of  the  will  to  probate  have 
no  right  to  introduce  evidence  opposed  to  that  introduced  by 

8  Knox    V.    Paull,    95    Ala.     505;  328;  Wall  v.  Wall,  123  Pa.  St.  545; 

Cummins     v.     Cummins,     1     Marv.  Wilson  v.   Gaston,  92  Pa.   St.   207; 

(Del.)    423:   Luther  v.   Luther,   122  Wright  v.  Smithson,  7  Lea    (Tenn.) 

111.    558;    Kostelecky   v.    Scherhart,  12;  Domestic  Missionary  Society  v. 

99    lo.    120;    Meyers    v.    Smith,    50  Eells,    68    Vt.    497;    O'Dell   v.   Rog- 

Kan.    1;    Allen   v.   Froman,   96   Ky.  ers,  44  Wis.  136. 
313;    Babcock  v.   Collins,   60  Minn.  9  Adapted     from    Bouvier'a    Law 

73;    Osborne    v.    Leak,    89    N.    Car.  Dictionary. 
433;    Swazey   v.   Blackman,   8   Ohio  lo  See   Sec.   320. 

5;  Woodbridge  v.  Banning,  14  O.  S. 


LAW    OF    WILLS.  ^^^ 


those  who  are  interested  in  having  the  will  admitted  to  pro- 
bate, though  such  adverse  parties  are  entitled  to  notice  of  the 
application  for  admission  of  the  will  to  probate.^^  In  other 
states  it  means  that  the  will  may  be  offered  for  probate  without 
any  notice  to  the  parties  opposed  to  its  admission.^^ 

Then  there  is  another  proceeding  corresponding  to  the  ec- 
clesiastical "probate  per  testes,"  in  which  those  who  are  in- 
terested in  resisting  probate  may  introduce  evidence  to  sup- 
port the  issues  on  their  side  to  be  established,  and  may  submit 
the  question  of  the  validity  of  the  will  to  a  proper  tribunal 
upon  a  full  and  ample  hearing,  after  probate  in  common 
form.  This  second  proceeding  is  generally  known  as  Con- 
test It  is  always  regarded  as  a  direct  attack  upon  the  order 
admitting  the  will  to  probate.^  ^ 

It  is  brought  about  in  the  different  states  in  different  ways. 
In  some,  contest  is  had  by  appealing  from  the  order  of  pro- 
bate to  the  court  which  hears  the  contest.^ ^  In  others  it  is  had 
by  a  new  and  independent  suit  to  contest  the  will,  which  is, 
however,  always  said  to  be,  while  not  an  appeal,^  ^  still  in 
the  nature  of  an  appeal  from  the  order  admitting  the  will  to 
probate,  and  hence  a  direct  attack  upon  such  order.^^ 

In  other  jurisdictions  this  new  suit  to  contest  the  will 
assumes  the  form  of  a  suit  to  revoke  the  order  admitting  the 
will  to  probate.^^  Again,  in  a  remaining  class  of  jurisdic- 
tions probate  in  common  form  is  the  method  of  commencing 
every  probate,  but  by  the  filing  of  a  formal  denial  of  the 
validity  of  the  will,  and  a  notice  of  an  intention  to  resist  its 
admission  to  probate,  the  probate  in  common  form  is  changed 
into  probate  in  solemn  form. 

In  a  text-book  of  this  size  and  scope  no   attempt  can  be 

11  See  Sec.  319.  Haynes   v.   Haynes,    33    O.    S.    598 ; 

12  See   Sec.   319.  Jones  v.  Dove,   6   Ore.   188;    Brown 
isMears   v.   Mears,    15    0.    S.   90;       v.   Brown,  7   Or.  285;    Clark  v.   El- 

Haynes  v.  Haynes,  33  O.  S.  598.  lis,   9   Or.   128 ;    Chrisman  v.   Chris- 

iiCorly    V.     Wayne     Co.     Prob.  man,    16   Or.    127;    Potter  v.   Jones, 

Judge,  96  Mich.  11;   55  N.  W.  38j6.  20    Or.     239;      Rothrock    v.     Roth- 

15  Bradford  v.  Andrews,  20  O.  S.  rock,  22  Or.  551. 

2og  i'^  Larson's  Estate,  71  Minn.  250. 

ifiOaklev  v.  Tavlor,  64  Fed.  245: 


356  LAW     OF     WILLS. 

made  to  collect  the  statutes  of  the  different  jurisdictions  and 
to  cite  the  cases  decided  thereunder;  nor  would  such  an 
attempt  be  ])rofitable  in  comparison  with  the  value  of  the 
material  that  would  necessarily  be  excluded  thereby.  Fur- 
ther, the  statutes  are  changed  in  outward  form  from  time  to 
time.  What  is  sought  in  this  chapter  is  to  discuss  the  gen- 
eral principles  which  underlie  these  diverse  statutes,  prin- 
ciples which  are  substantially  uniform,  partly  from  their 
common  descent  from  the  English  law  and  partly  from  the 
necessities  of  the  case.  While  these  proceedings  are  purely 
statutory,  the  legislature  can  not,  under  guise  of  changing 
the  procedure,  alter  the  law  so  as  to  prevent  contest  of  wills 
executed  by  testators  who  have  died  before  the  change  of  the 
law,  since  property  rights  are  fixed  at  testator's  death.^* 

§313.     Necessity  of  probate. 

Under  the  common  law  probate  was  not  necessary  for  a 
will  passing  real  property,  though  it  was  for  a  testament 
passing  personalty.^''  By  modern  statutes  this  distinction 
has  been  abolished  in  almost  every  jurisdiction.^*' 

In  the  District  of  Columbia  the  probate  of  a  will  devis- 
ing lands  was  formerly  of  no  effect  whatever,  but  by  subse- 
quent statute  it  was  made  prima  facie  evidence  of  the  validity 
of  such  will.^^ 

Under  modem  statutes  a  devisee  can  not  acquire  any  title 
to  the  realty  devised  to  him  until  the  will  whereby  it  is  devised 
has  been  probated.^^ 

18  Jones  V.  Robinson,  17  O.  S.  423;  Luther  v.  Luther,  122  111. 
171.     See  Sec.  22.  .558;  Seery  v.  Murray,  —  lo.  — ;  77 

19  See  Sec.  312  and  cases  there  N.  W.  10.58;  Meyers  v.  Smith,  50 
cited.  Kan.  1;  Miller  v.  Swan,  91  Ky.  36; 

20  See  cases  cited  in  note  follow-  Pratt  v.  Hargreaves,  76  Miss.  955 ; 
ing  the  next  note.  71    Am.    St.   Rep.    551;    Fotheree   v. 

21  Robertson  v.  Piekrell,  109  U.  S.  Lawrence,  30  Miss.  416;  London 
608 ;  Barbour  v.  Moore,  4  App.  D.  v.  R.  R.  Co.,  88  N.  Car.  584 ;  Swazey 
C.    535.  V.  Blackman,  8  Ohio,  5;   Wilson  v. 

22McClaskey    v.    Barr,    54    Fed.  Tappan,    6    Ohio    172;    Douglass   v. 

781;  Trawick  v.  Davis,  85  Ala.  342;  Miller    (Common  Pleas),  3  Ohio  N. 

Knox  V.  Paull,  95   Ala.   505;   Cum-  P.  220;   Roelke  v.  Roelke,  103  Wis. 

mins   V.    Cummins,    1   Marv.    (Del.)  204. 


LAW    OF    WILLS. 


A  will  which  has  not  been  probated  can  not  be  used  m  evi- 
dence to  support  the  title  of  the  devisee  ;^^  and  when  a  .vill 
was  probated  but  the  order  of  confirmation  was  vacated  by 
the  order  of  the  court,  such  court  having  power  to  make 
tiiis  order,  such  will  was  not  admissible  to  support  devisee  s 
title  in  an  ejectment  suit.^* 

Attaching  an  instrument,  in  effect  a  will,  to  a  pleading  as 
an  exhibit  does  not  avoid  the  necessity  for  the  adversary  party 
to  show  that  such  instrument  was  probated.^^ 

Probate  has  always  been  regarded  as  indispensable  to  allow 
a  testament  passing  personal  property  to  take  effect.  bo 
essential  is  probate  to  the  validity  of  a  will  and  testament  that 
some  methods  of  approaching  the  subject  of  wills  treat  the 
topics  of  capacity,  execution,  the  inherent  elements  and  the 
like  as  merely  of  importance  because  they  are  conditions  pre- 
cedent to  probate;  and  regard  probate  as  the  essentially  im- 
portant step,  in  the  Law  of  Wills. 

This  is  merely  an  example  of  the  temptation,  always  present 
even  under  modem  procedure,  of  classifying  substantive  law 
upon  a  basis  of  procedure  and  treating  substantive  law  as- of 
importance   simply   because   upon   certain    conditions   of   law 
and  fact,  the  courts  take  certain  judicial  action.     This  is,  of 
course,  an  inversion  of  the  true  basis  of  modern  law.  ^  Judi- 
cial action  follows  substantive  law  as  dependent  upon  it    and 
secondary  to  it.     If  the  cause  is  correctly  presented  and  de- 
cided   an  order  admitting  the  will  to  probate  will  always  fol- 
low, if  the  facts  show  a  will  valid  by  the  rules  of  substantive 
law'.     In  actual  practice,  however,  blunders  are  occasionally 
made  by  the  attorney  in  presenting  a  cause,  and  error  is  some- 
times made  bv  the  court  in  deciding  the  case.      The   actual 
workma:  of  the  system  of  law,  as  far  as  wills  are  concerned, 
Is  with^few  exceptions,  that  any  dispositive  paper  actually  ad- 
mitted to  probate  is  good  as  a  will  until  set  aside  by  direct 
attack  in  the  proper  manner,  no  matter  what  defects  there  may 

23  Inge  V.  Johnston.  110  Ala.  650.  2.5  Trawick  v.  Davis,  85  Ala.  342. 

24  Snuffer   v.   Howerton,    124   Mo.  26  See  Sec.   312. 
637. 


358  LAW    OF     WILLS. 

have  been  in  the  execution  of  the  will,  the  capacity  of  the  tes- 
tator and  the  like;  while  a  perfect  will  is  of  no  validity  if 
refused  probate,  until  the  error  is  corrected  in  the  manner 
prescribed  by  the  rules  of  procedure.  From  a  practical  stand- 
point, then,  probate  and  contest  are  the  critical  periods  for  a 
will. 


§314.     What  must  be  probated. 

The  probate  acts  are  so  general  in  their  terms  as  to  require 
every  instrument  of  a  testamentary  character  to  be  probated 
as  a  pre-requisite  to  its  validity.  When  only  testaments  of 
personalty  were  required  to  be  probated,  a  will  which  disposed 
of  both  realty  and  personalty  had  to  be  probated.^'^ 

In  some  special  cases  questions  have  arisen  as  to  the  neces- 
sity of  probating  particular  instruments.  Thus,  where  an 
extrinsic  document  is  so  referred  to  in  the  will  as  to  be  a 
part  thereof,  it  is  held  that  such  document  need  not  be  pro- 
bated.28 

On  the  same  principle  it  is  held  that  where  a  codicil  refers 
to  a  will,  and  makes  specific  changes  therein,  the  probate  of 
the  codicil  operates  as  a  probate  of  the  unrevoked  parts  of  the 
will,  and  no  further  proof  is  necessary.^^ 

Where  the  codicil  refers  clearly  to  the  will,  the  will  need  not 
be  proved  if  the  codicil  is.^*^  Ordinarily  a  codicil  is  so  con- 
nected with  the  will  to  which  it  refers,  that  it  can  not  be  pro- 
bated apart  from  such  will.^^ 

While  it  may  be  possible  in  some  cases  to  probate  a  codicil 
without  the  will  to  which  it  refers,  it  is  only  where  the  inten- 

27Rumph    V.    Hiatt,    35    S.    Car.  3i /,j  re  Harris,  2  Prob.  &  D.  83 ; 

444.  In  re  Crawford,  15  Prob.  Div,  212; 

28Balme's  Estate  (1897),  P.  261;  De  La  Saussaye,  Goods  of,  L.  R.  3 

66  L.  J.   P.   161    (where  the  docu-  P.   &   D.   42;    In  re   Honeywood,   2 

ment  referred  to  was  a  lengthy  li-  Prob.   &   D.     251 ;     Lord    Howden's 

brary    catalogue);    Willey's    Estate  Case,   43  L.  J.  P.  26;   Fry  v.  Mor- 

(Cal.),  56  Pac.   f50;    60  Pac.  471;  rison,  159  111.  244;  Pepper's  Estate, 

Tuttle  V,  Berryman,  94  Ky.  553.  148    Pa.    St.   5;    Hood's   Estate,   21 

29  Hobart  v.  Hobart,  154  111.  610.  Pa.   St.    106. 

30  Fry  V.   Morrison,   159   111.   244. 


LAW    OF    WILLS. 


359 


tion  of  the  testator  that  the  codicil  is  to  operate  independent 
of  the  will  is  manifest.'^  If  a  codicil  to  a  will  can  not  be 
found  the  original  will  may  nevertheless  be  probated  without 
it.33 

In  some  jurisdictions  where  a  will  is  not  signed  at  the 
end,  the  part  above  the  signature  will  be  regarded  as  a  valid 
will  and  admitted  to  probate  as  such.^^  While  this  case 
is  open  to  dispute  concerning  the  validity  of  the  will 
as  a  whole,  there  is  no  doubt  that  the  addition  of  a  writ- 
ing below  the  signature  after  execution  does  not  invalidate 
the  will,  but  such  writing  should  not  be  admitted  to 
probate.^^  But  a  will,  in  form  a  joint  will,  can  not  be  pro- 
bated as  the  will  of  both  parties  thereto  during  the  lifetime 
of  either  of  them,  but  it  may  be  offered  as  the  separate  will 
of  each.^^ 

A  will  which  is  executed  in  due  form,  and  is  partly  valid 
and  partly  invalid,  must  be  admitted  to  probate.^^  It  was 
said  in  an  obiter  that  a  will  appointing  a  testamentary  guard- 
ian only  need  not  be  offered  for  probate.^^ 

Where  testator  executes  separate  wills,  one  referring  to 
property  in  England,  and  the  other  to  property  in  a  foreign 
country,  and  appoints  separate  executors  for  each  of  such 
wills,  the  English  courts  will  not  admit  to  probate  the  will 
referring  exclusively  to  property  in  a  foreign  country,  even 
though  at  his  death  testator  was  domiciled  in  England.^^  But 
it  was  required  to  show  by  affidavit  that  the  personalty  disposed 
of  by  each  will  was  in  fact,  at  the  time  of  testator's  death, 
within  the  country  to  which  the  will  made  reference,^^  and 
where  a  will,  which  passed  property  in  one  jurisdiction,  con- 


32  Youse     V.     Forman,     5     Bugli  Crane's  Will,  42  N.  Y.  Supp.  904. 
(Ky.)    337;    Pepper's     Estate,     148  38  Slach  v.  Perrine    (D.  C.  App.), 

Pa.   St.   5.  23  Wash.  L.  Rep.  853. 

33  Sternberg's  Estate,  94  lo.  305;  39  Goods  of  Murray  (1896),  Prob. 
St  In  re  Gee,  78  Law  T.  Rep.  843.  65:  Tn  re  Eraser  (1891),  Prob.  285; 
35 /n  re  Gilbert's  Estate,  78  Law  Tamplin,    Goods    of,     (1894),    Prob. 

T.  Rep.  762.     See  Sec.  186.  39;    In    re    Seaman     (1891),    Prob. 

36  Davis's  Will.  120  N.  Car.  9;  38  253;  In  re  De  La  Rue,  L.  R.  15  P. 

L.    R.    A.    289;    Bank    v.    Bliss,    67  D.  185;  In  re  Calloway,  L.  R.  15  P. 

Conn.  317.  D.    147. 

37McClary  v.  Stull,  44  Neb.  175;  *o /»  re  Seaman,  1891    (P.),  253. 


360  LAW    OF    WILLS. 

firmed  an  earlier  will  which  passed  property  in  another  juris- 
diction, it  was  held  that  both  wills  should  be  probated  to- 
gether.^ ^  In  some  jurisdictions  a  will  may  be  corrected  at 
probate  for  mistake,  and  probated  as  corrected.'*^ 

§315.     The  court  of  probate  powers. 

In  the  different  states,  tribunals  are  generally  established 
having  jurisdiction  in  matters  of  probate  in  common  form, 
or  of  probate  generally,  known  variously  as  the  orphan's 
courts,  courts  of  surrogate,  probate  courts  and  the  like,"*^  and 
in  some  states  probate  power  is  left  to  the  clerk  of  the  specified 
court.^^ 

Probate  jurisdiction  is  generally  exclusively  vested  in  these 
courts.  When  this  is  the  case,  equity  can  not  interfere  in  mat- 
ters of  probate.'*^  ISTor  can  equity  in  a  suit  brought  against 
one  who  had  altered  a  deed,  and  suppressed  a  will,  decree  pro- 
bate of  such  will  as  incidental  relief ;  ^^  especially  where  full 
relief  can  be  had  in  probate  tribunals.^''' 

A  court  of  equity  can  not  enjoin  the  custodian  of  an  al- 
leged invalid  will  from  offering  it  for  probate,^^  and  can  not 
order  such  will  to  be  cancelled.^^     Further,  the  federal  court 

41  In  re  Lockhart,  1  Rep.  481 ;  69  46  McDaniel   v.   Pattison,   98   Cal. 

Law  T.  21;  57  J.  P.  313.  86. 

42 /n  re  Boehm    (1891)    P.  247.  47  Wells,   Fargo  &   Co.   v.   Walsh, 

43  Foley's  Estate,  —  Nev.  — ;  87  Wis.  67.  (Thus  a  creditor  can 
51  Pac.  834;  Merriam's  Will,  136  not  compel  the  executor  to  prove 
N.  Y.  58;  Walker's  Will,  136  N.  a  will  of  his  non-resident  testator 
Y.  20;  Walton  v.  Williams  (Okl.),  by  a  suit  in  equity.  The  creditor 
49  Pac.  1022;  Tozer  v.  Jackson,  has  a  complete  remedy  by  produc- 
164  Pa.   St.   373.  ing    an    authenticated    copy    of    the 

44  Davie  v.  Davie,  1892,  —  Ark.  will  and  having  t  recorded  in  the 
— ;    18   S.  W.  935;   De  las  Fuentes  county  court.) 

v.  McDonald,  85  Tex.  132;   Blanch-  48  Israel    v.    Wolf,    100    Ga.    339. 

ard  V.  Wilbur,  153  Ind.  387;  55  N.  {Contra  in   Cobb  v.   Hanford,  88 

E-  99-  Hun,  21,  where  an  executor  named 

45  Cilley  v.  Patten,  62  Fed.  498 ;  in  a  will  was  enjoined  from  offer- 
Oakley  V.  Taylor,  64  Fed.  245:  Ew-  ing  it  for  probate  on  the  ground 
ell  V.  Tidwell,  20  Ark.  136;  Israel  that  the  property  named  in  it  did 
V.   Wolf,    100   Ga.    339;    Cousens  v.  not  belong  to  decedent.) 

Advent    Church    of    Biddeford,    93  49  Israel    v.    Wolf,    100    Ga.    339 ; 

Me.  292,  Langdon  v.  Blackburn,  109  Cal.   19. 


LAW   of'  wills.  361 

will  not  order  a  will  to  be  cancelled  when  the  state  equity 
courts  have  no  such  jurisdiction.^^  But  in  a  New  York  case 
an  injunction  was  allowed  against  probating  a  will  by  which 
a  pre-existing  will  made  in  pui^uance  of  a  contract  upon  val- 
uable consideration    was  revoked.^^ 

Where  the  powers  of  the  probate  tribunals  are  inadequate, 
equity  will  aid.^^  But  in  many  jurisdictions,  courts  having 
equity  powers,  or  courts  in  code  states,  which  correspond  to 
the  courts  of  equity  powers,  may  hear  and  determine  the  con- 
test of  a  will  which  has  been  presented  for  probate,  and  pro- 
bated in  common  form  f^  and  where  the  state  courts  of  equit- 
able jurisdiction  have  power  to  hear  and  determine  contests  of 
wills  already  probated,  the  United  States  courts  may,  in  cases 
where  the  parties  are  citizens  of  different  states  and  the  amount 
involved  is  sufficient,  take  jurisdiction  of  such  contests.^^  In 
any  case,  a  court  not  especially  authorized  by  law  can  not  ad- 
mit a  will  to  probate,  as  incidental  to  its  general  judicial  func 
tions.^^ 

A  will  disposing  of  property  should  be  offered  for  original 
probate  in  the  court  within  whose  jurisdiction  testator  was 
domiciled  at  the  time  of  his  death,  irrespective  of  where  he 
might  have  died.®^ 

In  case  of  a  married  woman  this  is  prima  facie  the  jurisdic- 
tion in  which  her  surviving  husband  is  domiciled ;  so  that  her 
will  must  be  offered  for  probate  there,  irrespective  of  where 
she  may  have  died.^''' 

Under  most  systems  of  law  a  will  may  be  offered  for  pro- 
bate where  the  property  of  decedent  is  situated,  without  ref- 
erence to  his  domicile.     But  this  is  an  ancillary  probate  only, 

soCilley  v.   Patten,   62   Fed.   498.  pra,   the  court   sustained   a   suit   to 

51  Cobb  V  Hanford,  88  Hun,  21.  contest  a  will  instituted  before*  the 

53.  Rote    V.    Stratton,    2    Ohio    N.  will  was  probated. 

P.  27;  3  Ohio  Dec.  156.  ss  Campbell  v.   Porter,   162  U.   S. 

S3  Wright  V.  Jewell,   9   Manitoba,  478. 

607;  see  Sec.  312.  se  Miller    v.    Swan,    91    Ky.    36; 

5*  Gaines  V.  Fuentes,  92  U.  S.  10 ;  Manuel    v.    Manuel,    13    O.    S.    458: 

Ellis  V.  Davis.  109  U.  S.  485 ;  Brod-  Converse    v.    Starr,    23    0.    S.    491 ; 

erick's    Will,    21    Wall.    503:    Rich-  Walton  v.  Hall,  66  Vt.  455. 

ardson  v.   Green,   61    Fed.   423,   dis-  57  Wicke's  Estate    (Cal.)     (1900), 

tinguishing    In    re    Cilley,    58    Fed.  60  Pac.  867. 

977.      In   Richardson   v.   Green,   su- 


362  LAW    OF    WILLS. 

and  aifects  the  property  situated  in  such  jurisdiction  alone.^* 
The  court  within  whose  jurisdiction  property  is  situated  is 
not  precluded  from  admitting  the  will  to  probate  by  the  ac- 
tion of  the  court  of  testator's  domicile  in  admitting  the  will 
to  probate  there.^^ 

In  some  cases  courts  have  refused  to  admit  to  probate  the 
will  of  testator  domiciled  in  their  jurisdiction  where  it  ap- 
pears that  no  property  rights  can  be  controlled  thereby.  Where 
the  only  property  disposed  of  by  will  is  realty  situated  in  an- 
other jurisdiction,^*^  or  is  personal  property  situated  in  a  for- 
eign country,  the  courts  of  the  jurisdiction  where  testator  was 
domiciled  at  the  time  of  his  death,  have  refused  to  entertain 
probate  jurisdiction  thereof.®^ 

A  provision  in  a  will  dispensing  with  bond  and  with  all  pro- 
ceedings in  the  court  having  probate  powers,  after  inventory 

and  appraisement,  does  not  oust  such  court  of  its  jurisdic- 
tion.62 

A  court  of  probate  powers  may,  if  due  notice  is  given,  ad- 
mit a  will  to  probate  in  any  part  of  the  county.^^ 

§316.     Effect  of  delay  in  probate. 

In  many  states  some  penalty  is  imposed  for  delay  in 
probate.  Where  a  beneficiary  withholds  a  will  from  probate 
beyond  a  specified  time,  it  is  generally  provided  that  he  for- 
feits his  rights  thereunder.®^     If  he  was  entitled  by  the  law 

58  Robertson  v.  Pickrell,  109  U.  S.  ei  Goods  of  Tamplin  (1894), 
608;    Gordon's   Will,   50   N.   J.   Eq.       Prob.    39;    6   Rep.   533. 

397 ;    Fisher's    Will,    49    N.    J.    Eq.  62  Prather  v.  McClelland,  76  Tex. 

517;      Blymeyer's      Will,        Goebel  574. 

(Ohio),    14;    Pepper's    Estate,    148  63  La   Grange  v.   Ward,    11    Ohio, 

Pa.  St.  5;  Tarbell  v.  Walton,  71  Vt.  257.      (At   any   rate   such   order    is 

406;     45     Atl.      748;      Walton      v.  valid    against   collateral    attack.) 

Hall,   66   Vt.   455;    Frame  v.   Thor-  64  Foote  v.   Foote,   61   Mich.    181. 

mann,    102   Wis.    653.      Doubted    in  This  does  not  apply  to  foreign  wills. 

Kansas,  Meyers  v.   Smith,   50  Kan.  Carpenter  v.  Denoon,  29  O.  S.   379, 

1,    on    same   theory   as    administra-  but  though  the  rights  of  the  devisee 

tion   case  of  Perry  v.   Railroad,  29  may  be  thus  forfeited,  the  will  may 

Kan.   420.  be   probated   nevertheless.      Blymey- 

59  Frame  v.   Thormann,   102   Wis.  er's  Will,  Goebel    (Ohio),  14, 
653. 

60  In    re    Earhart,    50    La.    Ann. 
524:   23  So.  476. 


LAW     OF    WILLS.  ^^^ 

or  the  will  to  administer  the  estate  of  testator,  he  is  held  to 
renounce  his  rights  by  such  delay,  and  his  ignorance  of  the  law 


is  no  excuse/*^ 


no  exuuisc. 

As  an  additional  means  of  coercing  the  custodian  of  a  will  to 
produce  it,  power  is  usually  given  to  the  court  of  probate  to 
enforce  its  production  by  contempt  proceedings,  and  it  is  m 
many  states  made  a  crime  to  conceal,  suppress  or  destroy  a 

will. 

Long  delay  in  the  production  of  a  will  does  not  m  most 
states  operate  to  prevent  its  admission  to  probate.««  Still  it 
is  a  circumstance  of  suspicion  and  may  justify  the  court  of 
probate  jurisdiction  in  revoking  an  order  of  probate  made 
on  formal  proof,  and  in  requiring  full  proof  of  the  validity 
of  the  will  in  a  contest."  But  in  a  recent  Kentucky  case  it  was 
held  that  an  application  for  admission  of  a  will  to  probate 
was  an  action  in  the  sense  of  the  statutes  of  limitation  of 
actions,  since  the  word  action  included  a  proceeding  in  any 
court.  The  right  to  offer  a  will  for  probate  was  not  therefore 
limited  by  the  time  for  granting  original  administration,  but 
was  limited  by  the  statute  fixing  ten  years  as  the  period^of 
limitation  for  an  action  for  relief  not  otherwise  limited.^* 

§317.     Who  may  propound  a  will  for  probate. 

Under  early  procedure  it  was  often  said  that  the  executor 
was  the  proper  person  to  propound  the  will  for  admission  to 
probate,^^  and  where  the  executor  is  erroneously  named  and 
described  in  the  will,  he  may  have  it  probated  upon  showing 
his  correct  name    and  description.'^*^ 

Under  modern  statutes  any  person  interested  in  having 
the  will  admitted  to  probate  may  propound  it.     The  expres- 

65  Keith  V.  Proctor,  114  Ala.  676;  «»  Allen  v.  Froman,  96  Ky.  313. 
21   So    50'>  69Baskett'9    Estate,    78    Law    T. 

66  Waters  v.  Stickney,  12  Allen  Rep.  843;  Redmond  v.  Collins,  4 
(Mass.)l;  Besancon  v.  Brownson,  Dev.  L.  (N.  Car.)  430;  Ford  v. 
39  Mich.   388;   Vance  v.  Upson,  64  Ford,   7    Hump.    (Tenn.)    92. 

^g^    266.  7f>Baskett's    Estate,    78    Law    T. 

67  Gordon   v.    Old,    52    N.    J.    Eq.       Rep.  843. 
317. 


364  LAW     OF     WILLS. 

sion  'any  person  interested'  means  any  person  having  a  bene- 
ficial interest  under  the  will,  such  as  a  devisee  or  legateeJ^ 
And  where  such  a  party  appears  in  support  of  the  will  the 
executor  who  propounded  it  can  not  dismiss  his  application 
for  probate/^  It  is  generally,  under  these  statutes,  held  that 
one  who  is  named  executor  under  the  will  may  propound  it 
for  probate.^^  One  who  is  a  creditor  of  testator,  and  of  a 
legatee,  has  been  held  to  be  such  a  "party  interested"  as  to 
have  a  right  to  propound  the  will.  "Whoever  has  a  right  to 
offer  a  will  in  evidence,  or  to  make  title  under  it,  may  in- 
sist on  having  it  proved."  "^^ 

Where  the  will  attempts  to  pass  title  to  property,  ov  to  give 
control  thereof  to  any  person,  such  person  is  re^avded  as  » 
'party  interested  in  having  the  wdll  admitted  to  probate^' 
though  subsequent  proceedings  may  prevent  Fueh  gift  froiu 
taking  effect.  Thus,  where  testator  attempted!  to  establish  a 
charitable  home,  which  was  to  be  in  charge  of  a  certain 
church,  and  to  bequeath  property  to  such  home,  it  was  held 
that  the  church  niight  propound  the  will,  for  admission  to 
probate. '^^ 

An  application  which  fails  to  show  that  the  parties  pro- 
pounding the  will  are  beneficially  interested  in  its  admis- 
sion to  probate  is  insufficient.'''® 

§318.     Procedure  at  probate. — Petition. 

In  the  absence  of  a  statute  expressly  requiring  it,  a  written 
petition  for  admitting  a  will  to  probate  is  not  necessary  to 
give  the  court  jurisdiction  over  the  probate  of  the  ^vill.'^"     In 

71  Eliot  V.  Eliot,  10  Allen  (Mass.)  75  Vestry  of  St.  John's  Parish  v. 

357 ;  Mower  v.  Verplanke,  105  Mich.  Bostwick,   8  App.  D.   C.   452. 

398;    Taylor  v.   Bennett,   1   Ohio   C.  76  Doane     v.      Mercantile      Trust 

C.    95;     Elwell    v.    Convention,    76  Company.    160    N.    Y.    494. 

Tex.    514;    Schultz    v.    Schultz,    10  7- Deslonde     v.     Darrington,     29 

Gratt.    (Va.)    358  Ala.    92:     St.    Leger's    Appeal,     34 

72Lasak's  Will,  131  K  Y.  624.  Conn.    434:  In    re    Storey,  120    111. 

73  Kennard  v.  Kennard,  63  N.  H.  244 ;  Seery  v.  Murray,  107  lo. 
303.  384;   77  N.  W.   1058. 

74  Stebbins    v.    Lathrop.    4    Pick. 
(Mass.)    33:     Wells,    Fargo    Co.   v. 

Walsh,  87   Wis.  67. 


LAW     OF     WILLS. 


865 


some  jurisdictions,  however,  such  written  petition  is  required 
by  statute.'^* 


§319.     Notice. 

Upon  the  filing  of  the  petition  for  admitting  the  will  to 
probate,  or  upon  oral  application  made  therefor,  it  is  usual  y 
required  that  a  proper  notice  of  the  pendency  of  the  appli- 
cation be  served,  either  by  sending  a  copy  of  such  notice  to 
the  persons  interested,  or  by  publication  in  a  newspaper,  or 
both.'^^ 


78Malone  v.  Cornelius,  34  Oreg. 
192;  55  Pac.  536.  Where  not  re- 
quired by  statute,  a  written  appli- 
cation is  often  required  by  the 
rules  of  the  probate  court.  A  form 
in  use  in  many  Ohio  courts  is  here 
given:  In  the  matter  of  the  last 
will  and  testament  of  A  B,  deceased. 
Probate  court,  Franklin  County, 
State  of  Ohio.  To  the  Probate 
court    of    Franklin    County,    Stete 

of  Ohio.     The  undersigned — 

. -  respectfully  represents  to 

this  court  that  he  is  a  of  A 

B,  deceased,  late  of  Township 

County,    fetate    of    , 

and  that  said  A.  B.  died  on  the  — 
(jf^y  of ,  A.  D.  — ;  that  at  and  im- 
mediately prior  to  his  death  he  was 
domiciled    in    said    Township, 

County,    State   of  ;    that 

he    left    surviving    him    his    widow, 

C.  D.,  who  resides  at  ,  and  the 

following  named  persons,  who  are 
all  the  heirs  and  next  of  kin  of 
said  A.  B.,  deceased,  to  wit:  E.  F., 
a  son  of  said  A.  B.,  deceased,  H.  I. 
(etc.).  Your  petitioner  further  rep- 
resents that  said  A.  B.,  deceased, 
left  a  last  will  and  testament,  which 
he  herewith  produces,  offers  for  pro- 
bate and  files  with  this  court.  Your 
petitioner  therefore  respectfully  re- 
quests this  court  to  direct  the  man- 
ner in  which  notice  of  the  pendency 


and  object  of  this  proceeding  shall 
be  given   to   said  C.  D.,  widow  of  said 

A.    B.,   deceased,   and   to    said , 

next  of  kin    (resident  of  the   State 

of   ),   and   the   time   at   which 

such  notice  shall  be  given;  and  to 
fix  a  time  for  the  hearing  of  this 
application;  and  youft-  peititioner 
prays  that  upon  said  hearing  said 
last  will  and  testament  may  be  ad- 
mitted to  probate  and  recorded. 
Sworn  to  before  me  by  the  afore- 
said T.  M.,  and  by  him  subscribed 
in  my  presence  this  —  day  of       , 

A.  D.  19—.    ,  Prob.  Judge. 

79  Curtis  V.  Underwood,  101  Cal. 
661;  36  Pac.  110,  397;  Bacigalupo 
V.  Superior  Ct.,  40  Pac.  1055;  120 
Cal.  421;  52  Pac.  708;  Dugan  v. 
Northcutt,  7  App.  D.  C.  351;  Lar- 
son's Estate,  71  Minn.  250;  73  N. 
W.  966;  Heminway  v.  Reynolds,  98 
Wis.   501. 

A  form  of  the  order  fixing  tlie 
time  for  hearing  upon  the  applica- 
tion to  admit  the  will  to  probate, 
and  prescribing  the  notice  to  be  giv- 
en, is  as  follows:     In  the  matter  of 

the  will   of   A.   B.,   deceased.     

Court,    County,    ,    Ohio, 

A.    D.    19 — .      This    day    an 

instrument  in  writing,  purporting 
to  be  the  last  will  and  testament  of 
A.  B.,  deceased,  late  of  Town- 


366 


LAW     OF     WILLS. 


Where  notice  is  required,  the  order  admitting  the  will  to 
probate  may  be  vacated  upon  petition  of  the  next  of  kin 
upon  whom  proper  notice  of  the  pendency  of  the  probate  pro- 
ceedings has  not  been  served.*^ 

In  direct  attack,  an  order  of  probate  can  not  be  sustained 
where  the  record  shows  that  the  hearing  was  not  had  on  the 
day  for  which  it  was  set,  and  the  evidence,  while  showing 
that  notice  was  published,  does  not  disclose  the  contents  of 
the  notice  or  the  length  of  time  for  which  it  was  published.*^ 
So  where  a  will  was  admitted  to  probate  upon  insufficient 
evidence,  and  without  any  notice  to  testator's  father  or  broth- 
ers, his  heirs,  and  on  application  to  vacate  order  of  pro- 
bate the  only  contradiction  of  evidence  tending  to  establish 
these  facts,  was  an  affidavit  of  the  administrator  that  he  be- 
lieved that  these  heirs  had  received  notice  in  time  to  appearand 
object,  it  was  held  that  in  the  absence  of  any  facts  on  which 


ship,  in  this  county,  was  produced 
in  open  court  for  probate,  and  the 

application  of  L.  M.,  a  of  said 

A.  B.,  deceased,  for  the  admission 
of  said  will  to  probate,  was  filed. 
It  is  now  ordered  that  said  instru- 
ment in  writing  be  filed  in  this 
court,  and  that  due  notice  thereof 
and  of  said  application  to  admit 
the  same  to  probate  and  record 
as  the  last  will  and  testament 
of  said  A.  B.,  deceased,  be  given 
to  the  widow  and  next  of  kin 
of  the  testator,  resident  of  (the 
State  of ),  —  days  prior  there- 
to that  the  application  will  be  for 
hearing  before  this  court  on  the  — 

day    of    ,    A.    D.    19—,    at    — 

o'clock,  —  M. ;  and  that  said  no- 
tice shall  be  in  writing  and  shall 
be  served  on  said  parties  person- 
ally or  by  leaving  copies  thereof  at 
their  usual   place  of  residence. 

A  form  of  notice  approved  by 
many    courts    is    as    follows: 

Notice. — Probate      Court,      

County,  State  of  Ohio.     In  the  mat- 


ter of  the  last  will  and  testament  of 

A.  B.,  deceased.     Notice.     To  . 

You  are  hereby  commanded  to  noti- 
fy    ,   giving   at   least   —   days' 

notice!  thereof  in  writing,  that  on 

the  —  day  of  A.  D.   19 — ,  an 

instrument  in  writing,  purporting 
to   be   the   last   will   and   testament 

of   A.    B.,   deceased,     late     of   -^ 

Township,  in  said  county,  deceased, 
was  produced  in  open  court,  and 
an  application  to  admit  the  same 
to  probate  was  on  the  same  day 
made  to  said  court.  Said  applica- 
tion will  be  for  hearing  before  this 

court    on   the   —   day   of   ,    A. 

D.  1900,  at  —  o'clock,  —  M.  Hereof 
fail  not,  but  of  this  writ  and  serv- 
ice thereon  make  due  return.  Wit- 
ness my  signature,  as  Judge  of  the 

Court,    and    the    seal    of    said 

court,   this  —   day   of  ,   A.   D. 

1900.     ,  Probate  Judge. 

80  Herring   v.    Ricketts,    101    Ala. 
340;  In  re  Harlow,  73  Hun,  433. 

81  Heminway     v.      Reynolds,      98 
Wis.  501. 


LAW    OF    WILLS.  ^^* 

to  base  sucli  belief,  it  was  error  for  tbe  court  to  refuse  to 
vacate  such  order.^^ 

Where  the  parties  actually  appear  in  the  case,  the  ques- 
tion of  defective  publication  of  the  notice  for  application 
for  probate  can  not  be  raised.^^ 

A  contestant  can  not  take  advantage  of  failure  to  notify 
one  of  the  next  of  kin.  This  omission  is  not  prejudicial  to 
him  as  "probate  upon  a  proper  application  without  notice 
to  any  of  the  parties  entitled  thereto  would  not  be  void  but 
merely  voidable."  ^^ 

The  fact  that  the  notice  was  served  as  required  by  the  spe- 
cial statute,  and  not  as  required  by  the  statute  on  the  sub- 
ject of  service  in  general,  is  no  reason  for  attacking  the 
probate.®^  Nor  where  notice  is  served  upon  the  person  in- 
tended, will  a  slight  mistake  in  the  name,  such  as  "Helen 
Majora  Hamilton,"  instead  of  "Ellen  Majora  Hamilton,"  pre- 
vent the  court  from  obtaining  jurisdiction.^^ 

Notice  to  the  executor  does  not  bind  non-resident  heirs.«^ 
In  other  states  the  probate  in  common  form  is  even  more 
closely  modelled  upon  the  English  ecclesiastical  probate,  and 
no  notice  whatever  is  required.^^ 

82  Heminway  v.  Reynolds,  98  Wis.  sary  to  give  the  court  jurisdiction, 
gQj  and    the    production    of    competent 

83  Dugan  V.  Northcutt,  7  App.  evidence  of  its  validity.  Whenever 
jj    (-,     ggj  an  instrument  purporting  to  be  the 

84  Reese"  T.  Nolan,  99  Ala.  last  will  and  testament  of  a  de- 
203-  13  So  677;  Hall  v.  Hall,  47  ceased  is  presented  for  probate,  it 
Ala.'  290;  Otis  v.  Dargan,  53  Ala.  is  the  duty  of  the  court  to  hear 
,„g  the  witnesses   as  to   its   due  execu- 

85  Hamilton's  Estate,  120  Cal.  tion,  and  if  they  show  eo.  parie  the 
421-   52  Pac.  708.  instrument   offered    to    be    the   will 

86  Hamilton's    Estate,     120     Cal.       of  the  deceased,  it  must  be  admitted 
^j  to  probate  and  letters  testamentary 

87Feuchter  v.  Keyl,  48  O.  S.  357.  issued  as  a  matter  of  course."    Ma- 
ss-Under   our    statute    no    cita-  lone    v.    Cornelius,    34    Oreg     192 ; 

tion    is   necessary   or    required,   but  55   P^536;   Yo.  v    McCord    74  IlL 

the  probate  of  a  will  is  wholly  an  33;    Capper's   Will,    85    lo.    82      5. 

ex  parte  proceeding.    It  is  made  by  N.  W.   6;   Bent  v.  Thompson    5  N. 

the  presentation  of  the  will  to  the  M.  408;   23  Pac.  234;   Laughton  v. 

proper  county  court,  together  with  Atkins.  1  Pick.  53^5;  Lonng  v.Stein- 

a  verified  petition  for  its  admission  eman,   1   Met.   204;   Marcy  v.  Mar- 

to  probate,  setting  forth  facts  neces- 


368 


LAW     OF     WILLS. 


Where  no  notice  is  required  for  probate  in  the  common 
form,  it  is  error  for  the  court  to  refuse  to  proceed  to  take 
proof,  or  to  probate  the  will,  until  notice  can  be  given  to  the 

parties  interested.^^ 

§330.     Examination  of  witnesses  ex  parte. 

Where  a  separate  proceeding  is  provided  for  by  statute  in 
order  to  contest  the  will,  the  proceeding  in  the  nature  of  pro- 
bate in  common  form  is  usually  ex  parte,  in  the  sense  that 
only  the  subscribing  witnesses,  and  such  others  as  those  in- 
terested in  having  the  will  admitted  to  probate  may  see  fit 
to  offer,  are  allowed  to  testify,  and  no  opportunity  is  given 
to  those  who  are  interested  in  opposing  the  probate  of  the 
will  to  introduce  evidence.^'^  But  the  adversary  parties  who 
are  present  may  cross-examine  the  witnesses  offered  by  those 
who  are  interested  in  having  the  will  admitted  to  probate.^^ 


cy,  6  Met.  360;  Crippen  v.  Dexter, 
13  Gray,  330;  Arnold  v.  Sabin,  1 
Cush.  525;  Bonnemort  v.  Gill,  167 
Mass.   338. 

89  Malone  v.  Cornelius,  34  Oreg. 
192;  55  Pac.  536. 

90  Richardson  v.  Green,  61  Fed. 
Rep.  423;  Feuchter  v.  Key],  48  0. 
S.  357;  M.  E.  Missionary  Society 
V.  Ely,  56  O.  S.  405;  Hathaway's 
Will,  4  O.  S.  383;  In  re  Stacey,  6 
Ohio  Dec.  499;  Malone  v.  Corne- 
lius,  34   Oregon,   192;    55   Pac.   536. 

Where  such  rule  is  in  force  the 
legatees  are  not  always  parties  "in- 
terested in  having  such  will  admit- 
ted to  probate."  If  their  interest 
appears  adverse  to  the  probate  of 
the  will,  they  can  not  offer  evi- 
dence. In  re  Jones,  2  Ohio  N.  P. 
194. 

91  St.  Leger's  Appeal,  34  Conn. 
434;   Gray  v.  Gray,  60  N.  H.  28. 

In  Gray  v.  Gray,  60  N.  H.  28, 
it  was  held  that  on  probate  in  com- 
mon form,  the  appearance  of  the 
heirs  and  next  of  kin  by  attor- 
ney,   who    cross-examined    the    wit- 


nesses offered  by  proponent,  did 
not  of  itself  waive  the  notice  re- 
quired by  statute  so  as  to  amount 
in  legal  effect  to  probate  in  sol- 
emn form.  The  right  of  cross-ex- 
amination was  tacitly  recognized 
rather    than    expressly    adjudicated. 

In  Ohio  the  local  practice  in  the 
Probate  Courts  is  not  uniform 
upon  the  question  of  the  right  to 
cross-examine  witnesses  at  probate. 
In  some  courts  the  right  is  refused; 
in  others  it  is  granted.  In  Jones's 
Estate,  2  Ohio  N.  P.  190,  cross-ex- 
amination of  witnesses  at  probate 
of  ordinary  wills  was  spoken  of  as 
a  practice  which  h§id  grown  up, 
"which  may  not  be  commendable," 
but  which  was  "the  proper  view  to 
take  of  a  case  like  this";  that  is,  in 
an  application  to  admit  a  spoliated 
will  to  probate. 

Under  the  peculiarities  of  Ohio 
practice  it  is  almost  impossible 
that  this  question  should  be  pre- 
sented for  decision  to  a  reviewing 
court   on   error.      See   Sec.    323. 


LAW     OF     WILLS.  309 

This  point  is  in  dispute  in  many  jurisdictions.  If  the  local 
statute  is  specific  it,  of  course,  controls,  but  it  rarely  is,  and 
the  law  must  be  reasoned  out  .on  analogy.  In  jurisdictions 
where  upon  contest  the  order  of  probate  has  no  force  at  all, 
and  the  burden  is  upon  proponents  throughout,  it  must  be 
admitted  that  no  injustice  is  done  by  refusing  the  right  of 
cross-examination  at  probate.  But  where  the  effect  of  the 
order  of  probate  is  to  make  out  a  j)rima  facie  case  on  contest 
in  favor  of  the  will,*  or  where  the  evidence  of  the  subscribing 
witnesses  given  at  probate  is  admissible  on  contest  as  if  it  were 
a  deposition,''^  it  seems  clear  upon  principle  that  unless  the 
statute  very  clearly  precludes  it,  cross-examination  should  be 
allowed  at  probate.  If  it  is  not  allowed,  some  witness  who  is 
examined  at  probate  may  be  dead,  sick  or  beyond  the  juris- 
diction of  the  court  on  contest.  In  such  case,  it  might  easily 
happen  that  the  will  might  be  established  on  contest  by  the 
evidence  of  witnesses  whom  contestants  had  no  opportunity 
to  examine,  and  who  might  have  modified  their  testimony  very 
materially  on  cross-examination. 

In  probate  in  the  common  form  the  subscribing  witnesses 
should  be  called  if  in  the  jurisdiction  of  the  court,  and  avail- 
able.^^ Otherwise,  if  they  are  alive,  it  is  usually  provided 
that  a  commission  issue  with  the  will  annexed  to  take  their 
depositions.  If  the  subscribing  witnesses  do  not  make  out  a 
prima  facie  case  in  favor  of  the  will,  the  parties  interested  in 
having  the  will  admitted  to  probate  are  not  concluded  thereby, 
but  may  call  other  witnesses  in  order  to  make  out  a  prima 
facie  case;^^  unless,  of  course,  the  statute  specifically  pro- 
vides that  only  the  subscribing  witnesses  may  testify  at  pro- 
bate in  common  form.  It  is  only  required  that  the  proponents 
of  the  will  make  out  a  prima  facie  case,  to  entitle  the  will  to 
admission  to  probate.^^ 

It  is  often  provided  that  the  testimony  of  witnesses  offered 
at  probate  shall  be  reduced  to  writing  and  signed  by  them. 

*  See   Sec.    330.  Exrs.  v.  Sims,  90  Va.  588 ;    Lough- 

92  See  Sec.  367.  ney  v.  Loughney,  87  Wis.  92.     See 

83  See  Sec.  366.  '  ?ec.  366. 

64  Ludlow's    Estate,    7    Ohio    Dec.  95  Ludlow's    Will,     6    Ohio    Dec. 

104;   4  Ohio  N.  P.  155;  Whitelaw's  344;   4  Ohio  N.  P.  155. 


370 


LAW     OF     WILLS. 


Such  provision  has  been  held  to  mean  that  the  affidavits  of 
these  witnesses  should  be  offered  in  evidence,  instead  of  viva 
voce  testimony.^*'  Such  provisions  are  directory  not  juris- 
dictional. Where  the  court  omitted  to  comply  with  this  pro- 
vision literally,  but  set  out  on  the  record  the  substance  of  their 
testimony,  it  was  held  to  be  a  sufficient  compliance  with  the 
statute. ^^  Whether  the  statute  requiring  the  testimony  of  the 
witnesses  to  be  reduced  to  writing  makes  it  necessary  to  take 
their  testimony  by  affidavit,  or  not,  the  practice  is  very  ancient 
and  is  well  established  in  manv  courts.^^ 


»6  Baker  v.  Cravens,  150  Ind.  199. 

"We  have  no  doubt  that  the  stat- 
utory requirement  that  the  proof 
shall  be  entered  of  record  contem- 
plated that,  ordinarily,  proof  should 
be  made  by  affidavit.'  Baker  v. 
Cravens,    150    Ind.    199. 

97  Reese  v.  Nolan,  99  Ala.  203. 

98  The  following  form  of  affi- 
davit of  subscribing  witness  is  in 
common  use: 

(Affidavit  of  subscribing  wit- 
ness.)      (Style  of  case  and  court.) 

The  State  of , County,  ss. 

I,  C  D ,  being  first  duly  sworn  in 
open  court  this  —  day  of  — ,  A.  D. 
19 — ,  do  depose  and  make  oath  that 
I  was  present  upon   the  —  day  of 

,  A.  D.  19 — ,  at  the  execution 

of  the  last  will  and  testament  of 
A  B,  deceased,  hereunto  annexed; 
that  I  saw  said  testator,  A  B,  sub- 
scribe said  will  (and  heard  him 
publish  and  declare  the  same  to 
be  his  last  will  and  testament), 
and  that  I  subscribed  my  name  as 
witness  to  said  will  at  the  request 
of   said   A   B,   and   in   his   presence 

(and  in  the  presence  of  (the 

other  subscribing  witness).)  I  do 
further  depose  that  at  the  time  of 
the  execution  of  said  will  by  said 
A  B ,  that  said  A  B  was  of 
full  age    (to  wit,  of  about  the  age 

of   )  ;    that    he    was    of    sound 

mind  and  memory,  and  that  he  was 
under  no  restraint.     (Signed)   C   D. 


Sworn  to  before  me  by  the  afore- 
said C  D  in  open  court  on  the  day 
and  year  above  mentioned  and  by 
him   then    and   there   subscribed   in 

my  presence.  , 

Probate  Judge. 

(Form  of  reduction  of  the  evi- 
dence of  the  subscribing  witnesses 
to  writing.)  The  subscribing  wit- 
nesses to  said  will,  after  being  duly 
sworn  to  speak  the  truth,  the  whole 
truth  and  nothing  but  the  truth,  in 
relation  to  the  execution  of  said 
will,  testified  in  open  court  which 
testimony  was  reduced  to  writing 
and  by  them  respectively  subscribed, 
and  is  in  words  and  figures  follow- 
ing, to  wit: 

The   State  of  ,  County, 

s.    s.:    Court.    I,    C     D ,    being 

first  duly  sworn  in  open  court  this 
—  day  of — ,  A.  D.  19 — ,  depose  and 
say  that  I  was  present  at  the  exe- 
cution of  the  last  will  and  testa- 
ment   of    A    B,    deceased,    hereunto 

annexed,  on  the  —  day  of  A. 

D.  19 — ;  that  I  saw  said  testator, 
A  B,  subscribe  his  name  to  said 
will  (and  heard  him  publish  and 
declare  the  same  to  be  his  last  will 
and  testament)  ;  and  I  further  de- 
pose and  say  that  said  A  B  at  the 
time  of  the  execution  of  said  last 
will  and  testament  was  of  full  age, 
of  sound  mind  and  memory,  and 
not  under  any  restraint,  and  that 
I    signed    the    same    as    a    witness 


LAW    OF    WILLS. 


871 


§321.     Contest. — Limitations. 

In  most  states  a  certain  period  is  fixed  by  statute  within 
which  a  will  once  admitted  to  probate  may  be  contested.  This 
period  of  time  is  different  in  different  jurisdictions,  extend- 
ing from  one  to  five  years.  Whatever  the  limit,  however,  it 
is  well  settled  that  contest  is  not  governed  by  the  ordinary 
statute  of  limitations,  but  by  its  own  special  statute,  wherever 
such  a  one  exists.^^     In  Pennsylvania,  the  fact  that  a  caveat 


thereto  in  the  presence  of  said  tes- 
tator, A  B,  and  at  his  request. 
Sworn  to  before  me  by  the  afore- 
said C  D,  and  by  him  subscribed 
in  my   presence,   the   day   and  year 

above  written. ,  Judge. 

(Form  of  order  admitting  will 
to  probate.)  In  the  matter  of  the 
will  of  A  B,  deceased.  Be  it  re- 
membered:      That     heretofore,     to 

wit,  on  the day  of ,  A.  D. 

I'J — ,  an  instrument  in  writing  pur- 
porting to  be  the  last  will  and  tes- 
tament  of    A    B,    deceased,    late   of 

Township,  in  this  county,  was 

produced  in  open  court  for  probate, 
and  application  was  made  for  ad- 
mission of  said  instrument  to  pro- 
bate as  the  last  will  and  testament 

of  A  B,  deceased,  by  L  M,  a  

of  said  A  B,  deceased;  and  it  was 
ordered  by  the  court  that  said  in- 
strument be  filed  in  this  court,  and 
that  notice  in  writing  of  the  filing 
of  said  instrument  and  of  the  ap- 
plication to  admit  said  instrument 
to  probate  as  the  last  will  and  tes- 
tament of  A  B,  deceased,  and  of 
the  time  of  the  hearing  of  said  ap- 
plication be  given  to  the  widow  and 
next  of  kin  ( resident  in  the  State  of 

)  at  least  —  daj^s  prior  to  said 

hearing;  and  it  now  being  shown 
to  the  satisfaction  of  the  court 
that  due  notice  of  the  filing  of  said 
will  and  of  the  application  to  admit 
the  same  to  probate  and  record  in 
this  court  has  been  given  to  the 
widow  and  next  of  kin  of  the  tes- 


tator, pursuant  to  said  former  order 
of  this  court,  thereupon  this  day 
came  C  D  and  E  F,  the  subscribing 
witnesses  to  said  will,  who,  being 
first  duly  sworn  and  qualified,  tes- 
tified to  the  due  execution  and  at- 
testation of  said  will ;  which  testi- 
mony was  reduced  to  writing,  by 
them  respectively  subscribed  and 
filed  with  said  will.  Whereupon 
the  court  finds  that  the  aforesaid 
instrument  in  writing  is  the  last 
will  and  testament  of  A  B,  de- 
ceased ;  that  the  same  was  duly  exe- 
cuted and  attested  as  required  by 
law;  that  the  said  testator  at  the 
time  of  signing  the  same  was  of 
lawful  age,  of  sound  and  disposing 
mind  and  memory,  and  under  no 
undue  or  unlawful  restraint  what- 
soever. It  is  therefore  by  the 
court  ordered  that  the  said  will 
be  admitted  to  probate,  and  the 
same,  together  witb  the  testimony 
of  the  witnesses  above  named,  be 
entered  to  record  in  this  court. 

99  Bacigalupo  v.  San  Francisco, 
Super.  Court,  108  Cal.  92;  Sbar- 
boro's  Estate,  63  Cal.  5;  Storrs 
V.  St.  Luke's  Hospital,  180  111.  368 ; 
Keister  v.  Keister,  178  111.  103; 
Evansville,  etc.,  Co.  v.  Winsor,  148 
Ind.  682;  Bartlett  v.  Manor,  146 
Ind.  621;  Duff  v.  Duff,  —  Ky.  — ; 
45  S.  W.  102;  Justus's  Succession, 
45  La.  Ann.  100:  Meyer  v.  Hender- 
son, 88  Md.  585;  42  Atl.  241; 
Schlottman  v.  Hoffman,  73  Miss. 
1S8:   Stowe  v.  Stowe,  140  Mo.  594; 


372  LAW    OF    WILLS. 

was  filed,  does  not  prevent  the  judgment  from  becoming  con- 
clusive upon  the  lapse  of  the  time  fixed  by  statute.^ '^'^ 

The  statute  of  limitations  in  contests  differs  from  the  or- 
dinary statute  in  that  it  is  jurisdictional  in  its  nature,  and 
can  not  be  waived  by  consent  of  the  parties,  since  after  the 
limit  fixed  by  statute,  the  court  has  no  jurisdiction  over  the 
subject-matter  of  the  contest.^ °^ 

Where  the  ground  of  contest  was  unkno\\Ti  to  the  heir,  and 
was  not  discovered  by  him  until  after  the  limit  for  contest 
had  elapsed,  it  was  held  that  such  heir  could  not  contest  the 
will  under  the  statute,  and  that  equity  would  grant  him  no 
relief  ;^°^  even  where  the  cause  of  contest  was  fraud,  and  this 
was  concealed  till  the  statutory  time  for  contest  had  elapsed.i*^^ 

In  jurisdictions  where  the  grounds  of  contest  must  be  set 
out,  no  addition  can  be  made  thereto  after  the  time  fixed  by 
statute  has  expired.^ °^  But  where  the  amendment  offered  only 
re-stated  in  a  fuller  manner  the  issuable  facts  of  the  original 
petition,  it  may  be  permitted.^  °^ 

In  some  states  it  is  held  that  a  decree  admitting  a  will  to 
probate  may  be  vacated  for  fraud  or  mistake  without  regard  to 
the  time  for  contesting  the  wilL^^*^  This  right  generally  rests 
on  specific  statutory  provisions.  Its  exercise  prevents  the  good 
results  of  stability  and  certainty  which  a  fixed  peyiod  for  con- 
test was  designed  to  give.  In  some  states  wliere  this  right  is 
recognized  it  is  said  that  interv'ening  rights  obtained  under  the 
will  can  not  be  disturbed.^  "^^  In  other  states  this  right  is  de- 
nied after  the  end  of  the  term  at  which  the  order  admitting 


41    S.    W.    951 ;    Hughes    v.    Boone,  los  Luther  v.  Luther,  122  111.  558. 

81   N.   Car.   204;    Cox's   Estate,   167  lo*  Meyer  v.   Henderson,  supra. 

Pa.    St.    501;    Miller's    Estate,    166  los  Wilson's  Estate,  117  Cal.  280, 

Pa.  St.  97;  Nichol's  Estate,  174  Pa.  modifying  same  case,  117  Cal.  262. 
St.  405.  106  Snuffer  v.  Howerton,  124  Mo. 

100  Nichol's    Estate,    174    Pa.    St.  637;    Gordon  v.   Old,   52   N.   J.   Eq. 

405.  317;  In  re  Janes,  87  Hun,  57;  Ham- 

iwi  Meyer    v.    Henderson,    88    Md.  bleton  v.  Yocum,   108   Pa.   St.   304 ; 

585;    42   Atl.    241.  Vance  v.  Upson,  64  Tex.  266;  Good- 

102  Bartlett    v.    Manor,    146    Ind.  ell  v.  Pike,  40  Vt.  319. 
621;  45  N.  E.  1060;  Stowe  v.  Stowe,  iot  Waters  v.   Stickney,   12   Allen 

140  Mo.  594;   41    S.  W.  951.  (Mass.)    1. 


LAW     OF     WILLS. 


873 


the  will  to  probate  was  rendered,^  ^**  It  is  fairly  well  settled, 
however,  that  the  probate  court  will  not  have  any  authority  to 
set  aside  an  order  admitting  a  will  to  probate,  unless  specific- 
ally authorized  by  statute.^ '^'^ 

The  statutes  limiting  the  time  within  which  a  will  may  be 
contested  generally  contain  certain  exceptions  in  favor  of  in- 
fants, persons  of  unsound  mind,  and  the  like.  These  excep- 
tions exist  only  by  force  of  the  statute,  and  the  statutes  are  to 
be  strictly  construed.  Thus,  where  the  statute  made  an  excep- 
tion in  favor  of  those  who  were  absent  from  the  state,  it  was 
held  that,  where  an  heiress  came  into  the  state  for  a  short  visit 
when  she  was  a  child,  after  the  probate  of  the  will,  she  could 
not,  after  the  expiration  of  the  time  limit,  claim  exemption 
from  the  provisions  of  the  statute  on  the  ground  that  she  had 
been  without  the  state.-'^^  Where  an  exception  to  the  statute 
of  contest  generally,  such  as  infancy,  is  omitted  from  the  stat- 
ute controlling  the  contest  of  wills  of  a  particular  class,  as 
foreign  wills,  the  courts  can  not  add  such  exception  to  the  pro- 
visions of  the  statute  controlling  the  particular  class.^^^  The 
legislature  has  ample  power  to  omit  all  disabilities  as  bars  to 
the  ojieration  of  the  statute,  if  it  sees  fit.-^^^ 

In  analogy  to  a  familiar  principle  of  the  Statute  of  Limi- 
tations, disabilities  can  not  be  tacked  together  to  take  the  case 
out  of  the  statute.  Thus,  where  an  heiress  left  the  state  after 
the  will  was  probated,  before  coming  of  age,  and  remained  out- 
side till  after  coming  of  age,  it  was  held  that  the  time  of  limi- 
tations was  to  be  counted  from  the  time  of  coming  of  age,  and 
that  the  period  of  absence  from  the  state  could  not  be  added  to 
tlie  time  of  minority  to  postpone  the  operation  of  the  stat- 
ute.113 

los  Walters    v.    Ratliff,    5    Bush.  no  Powell    v.    Koehler,    52    0.    S. 

(Ky.)    575    Taylor   v.    Tibbatts,    13  103. 

B.  Mon.    (Ky.)    177.  m  Wheeler    v.    Wheeler,    134    111. 

109  Corly    V.     Wayne    Co.,    Prob.  522 ;  Evansville,  etc.  Co.  v.  Winsor, 

Judge,  96  Mich.  11;    Beatty's  Will  148    Ind.    682;    Bent   v.    Thompson, 

193  Pa.  St.  304,  45  Atl.  1057  5  N.  M.  408;   23  Pac.    (1890),  234. 

Contra  Hotchkiss  v.  Ladd,  62  Vt.  112  Garrison  v.  Hill,  81   Md.  551. 

209.  113  Powell    V.    Koehler,    52    0.    S. 

103. 


374  LAW    OF    WILLS. 

But  these  statutes  do  not  apply  where  contest  is  not 
sought,  but  simply  the  correction  of  an  error  in  the  record- 
ing of  a  will.  Errors  in  recording  the  order  of  the  court  may 
be  corrected  after  the  time  for  contest  has  elapsed.^  ^^ 

§322.     Inconsistent  wills. 

Where  two  separate  wills  are  probated  together,  and  as  one 
instrument,  and  no  appeal  is  taken,  such  action  precludes  any 
claim  that  the  second  will  operates  as  a  revocation  of  the 
first.115 

When  one  will  is  probated,  another  will  inconsistent 
with  the  first  can  not  be  probated  at  a  later  time  as  a  codicil, 
since  this  in  effect  operates  as  a  revocation  of  the  earlier  will. 
The  earlier  will  should  be  contested.  Hence  an  application  to 
substitute  a  will  discovered  after  an  earlier  will  had  been  ad- 
mited  to  probate  necessarily  involves  a  contest  of  the  will  pro- 
bated, and  must  be  made  within  the  time  limited  for  contest. 
It  follows  that  where  a  will  is  discovered  so  long  after  the  ear- 
lier will  was  admitted  to  probate  that  the  limit  fixed  by  stat- 
ute for  contest  has  elapsed,  such  will  can  not  be  probated.^ ^^ 
In  some  earlier  cases  this  principle  has  been  ignored  without 
discussion,  and  inconsistent  wills  have  been  admitted  to  pro- 
bate after  the  time  for  contesting  the  first  will  has  elapsed,^  ^'^ 
or  a  later  inconsistent  codicil  has  been  probated  without  any 
proceeding  in  the  nature  of  a  contest.^  ^^ 

It  has  been  held  recently  that  the  probate  court  has  power 
to  admit  a  will  to  probate  when  offered,  and  if  such  will  effects 
a  revocation  of  a  will  previously  admitted  to  probate,  the  court 
has  power  to  reverse  or  revoke  the  former  decree  as  far  as  may 
be  necessary  to  give  effect  to  the  later  will.^^^ 

11*  Hamilton-Brown    Shoe    Co.   v.  ht  Waters  v.   Stickney   12   Alien 

Whitaker,  4  Tex.   Civ.  App.   380.  (Mass.)     1;     Vance    v.    Upson,    64 

115  Dicke  V.  Wagner,  95  Wis.  260;       Tex.    266. 

70  N.  W.   159.  118  Bracken's  Estate,   138  Pa.  St. 

116  Watson    V.    Turner,     89     Ala.       104. 

220;    Bartlett   v.    Manor,    146    Ind.  na  Cousens  v.   Advent  Church  of 

621.  Biddeford,  93  Me.   292. 


LAW    OF    AVIL.LS. 


375 


§323.     Nature  of  contest. 

Contest  is,  under  most  modem  systems  of  jurisprudence,  en- 
tirely a  statutory  proceeding.  It  is  not  an  action  at  law  or  a 
suit  in  equity,^  ^°  and  is  not  a  civil  action,  though  it  is  a  civil 
case.^2^  In  some  states  it  is  an  action  at  law  by  statute.^22 
Under  some  of  the  older  systems  contest  was  treated  as  a  suit 
in  equity,  independent  of  statute;  and  this  view  of  the  pro- 
ceeding is  still  entertained  in  some  states  in  spite  of  statutory 
changes.^2^  Contest  is  in  the  nature  of  an  appeal  ;^2*  but  it  is 
still  an  original  action,  and  not  an  appeal.^  ^^  As  contest  is 
usually  either  an  appeal  or  an  action  in  the  nature  of  an  ap- 
peal, there  must  be  an  order  admitting  the  will  to  probate  in 
order  to  authorize  a  contest.^  ^^ 

The  court  may,  in  its  discretion,  consolidate  proceedings  in- 
stituted by  different  persons  for  the  purpose  of  having  differ- 
ent instruments  each  probated  as  the  last  will  and  testament  of 
decedent.^  2'^  Separate  contests  of  a  will  and  a  codicil,  or  of 
two  wills,  each  claimed  to  be  the  last  will  of  testator,  may  be 
consolidated  by  the  court  and  heard  together.^^s 

In  contest,  the  question  whether  the  will  was  admitted  to 
probate  properly  or  improperly  does  not  exist.  Contest  does 
not  review  the  action  of  the  court  below  on  error.^^^  The 
question  of  the  validity  of  the  will  as  offered  for  probate  is 
raised  for  adjudication  on  its  merits  in  a  contest,  and  the  court 

i2ociough    V.    Clough,    10    Colo.  124  Haynes   v.    Haynes,    33    0.    S. 

App.    433;     Grady    v.    Hughes,    64  598. 

Mich.    540 ;    Corly    v.    Wayne    Co.,  125  Bradford  v.  Andrews,  20  O.  S. 

Prob.   Judge,   96  Mich.   11;     55  N.  208. 

W.  386.  ^2"  Olmstead    v.    Webb,    5    App. 

121  Carpenter  v.  Bailey,  127  D.  C.  38;  Hoope's  Estate,  152  Pa. 
Cal.    582:    53   Pac.   842.  St.   105. 

122  Garland  v.  Smith,  127  Mo.  Apparently  contra,  Richardson  v. 
567;  28  S.  W.  191;  29  S.  W.  830;  Green,  61  Fed.  423. 

Lilly  V.  Tobbein,  103  Mo.  477  ;  Ap-  127  Roulett  v.   Mulherm,   100  Ga. 

pleby  V.  Brock,  70  Mo.  314.  591. 

123  Shaw  V.  Camp,  163  111.  144,  128  Roulett  v.  Mulherin,  100  Ga. 
affirming  61  111.  App.  68;  Hudnall  591;  Wilson's  Estate,  117  Cal.  280; 
V.  Ham,  172  111.  76;  Claussenius  v.  117  Cal.  262;  49  Pac.  172. 
Claussenius,  179  111.  545;  Keister  v.  .  120  Watson's  Will,  131  N.  Y.  587: 
Keister,  178  111.  103.  Clark  v.  Ellis,  9  Oreg.  128;  Con- 
verse V.  Starr,  23  0.  S.  491. 


376  LAW     OF     WILLS. 

is  not  restricted  in  its  inqiiirj  by  the  action  of  the  court  be- 
low.-^ ^^  The  court  may,  therefore,  in  a  contest  proceeding,  ad- 
mit on  cross-petition  a  part  of  the  will  which  was  rejected  by 
the  trial  court.^^^  Further,  in  case  of  erroneous  recording  of  the 
will  in  the  probate  court,  the  question  is  whether  the  instru- 
ment offered  at  the  trial  on  contest  is  the  last  will  and  testament 
of  testator.^  ^^  On  appeal  in  the  nature  of  a  contest  the  court 
may  bring  in  new  parties.-*^^  Where  contest  takes  the  form  of 
filing  a  caveat,  such  act  puts  a  stop  to  all  further  proceedings 
in  the  probate  in  common  form  until  the  caveat  is  disposed 
q£  134  -j-jjg  method  provided  by  statute  for  reviewing  an  order 
admitting  a  will  to  probate  is  usually  e:s:clusive.  Thus,  if  ap- 
peal on  contest  is  provided,  error  will  not  lie.-^^^ 

In  order  to  promote  justice,  a  suit  brought  to  set  aside  a  will 
and  the  probate  thereof,  on  the  ground  that  such  will  is  re- 
voked, is  treated  as  a  statutory  proceeding  to  contest  such 
will.^^*^  But  contest  can  not  be  made  the  means  of  trying  the 
validity  of  certain  devises  in  a  will.^^''  It  is  often  required 
that,  uj)on  instituting  proceedings  in  contest,  the  court  of  pro- 
bate powers  shall,  after  due  notice,  transmit  the  will  and  a 
transcript  of  the  probate  proceedings  to  the  court  before  which 
contest  is  pending.  This  requirement  is  not  jurisdictional, 
and  the  failure  of  the  court  to  transmit  such  papers  is  not 
ground  for  dismissing  the  contest.-' ^^ 

isoMcIntire  v.   Mclntire,    162   U.  Corse,    80    Md.    20;    30    Atl.    569; 

S.  383;  Mack's  Appeal,  71  Conn.  Fischer's  Case,  49  N.  J.  Eq.  517. 
122;    41    Atl.   242;    Shaw  v.   Camp,  iss  Mosier   v.    Harmon,    29    O.    S. 

163  111.   144,  affirming  01   111.  App.  220. 
68 ;    Preston    v.    Fidelity,    etc.,    Co.  i36  Evansville,    etc.,    Company    v. 

—  Ky.  — ;   22  S.  W.   318;   Sander-  Winsor,     148    Ind.    682. 

son   V.    Sanderson,     52    N.     J.    Eq.  i37  Cox  v.  Cox,   101   Mo.   168;    13 

243;   Smith  v.  Smith,  48  N.  J.  Eq.  S.   W.   1055:    Lilly  v.  Tobbein,    103 

566;  Commonwealth  V.  Thomas,  163  Mo.    477;    13    S.    W.    1060;    Mears 

Pa.    St.    446;     Berg's    Estate,     173  v.    Mears,    15    0.    S.    90;    Anderson 

Pa.   St.  647.  V.  Anderson,  112  N.  Y.  104;  2  L.  R. 

131  Shaw  V.  Camp,  163  111.  144.  A.   175;    Prather  v.  McClelland,   76 

132  Haynes   v.    Haynes,    33    O.    S.  Tex.   574. 

598.  138  Johnson  v.  Cochrane,  91  Hun, 

133  Miller's  Will,   166  Pa.  St.   97.  165;   aflf.   159  N.  Y.  555;   54  N.  E. 

134  King's  Administrator  v.  Rose,  1092. 

—  Ky.  — ;  38  S.  W.  844 ;  Keene  v. 


377 

LAW     Ol^    WILLS. 


§324.     Necessity  of  parties. — Notice. 

As  to  the  necessity  of  parties  in  a  will  contest  the  states  may 
be  divided  into  two  classes.     In  states  of  one  class  all  parties 
interested    must    be  made    parties    to    the    proceeding,   and 
served  either  actually  or  constructively.^  ^^     If  the  attention  of 
the  trial  court  is  called  to  this  omission  it  may  dismiss  the 
appeal  at  once  for  defect  of  parties,  without  prejudice  to  a  new 
appeal '''     In  courts  of  this  class  the  omission  of  a  necessary 
party,  as  a  legatee,  is  reversible  error,^-  and  the  objection  of  a 
defect  of  parties  may  be  made  for  the  first  time  in  the  upper 
^^^,^t''^     But  where  a  beneficiary  under  an  earlier  will  con^ 
tested  the  probate  of  a  later  will,  and  was  plaintiff  because  of 
his  interest  under  such  earlier  will,  it  was  held  unnecessary  to 
make  him  a  defendant,  too,  because  of  his  interest  under  the 
later  will  ''^     And,  where  an  unborn  child  of  testator  was  in 
existence  at  testator's  death,  the  court  might  nevertheless  pro- 
ceed as  in  ordinary  cases  of  probate  and  contest.^         :Notice 
is  also  required  where  opposition  to  probate  is  filed  under  the 
local   statute,   as   a  means   of   demanding   probate   m^  solemn 
form^^^   And  where  this  notice  was  in  fact  served  m  time, 
and  proof  of  service  was  filed  before  the  actual  hearing  of  the 
contest,  proponent  could  not  take  advantage  of  the  fact  that  the 
proof  of  service  was  not  filed  before  the  time  originally  fixed 
for  the    hearing.i^^     In    states    of    the  other  class  contest  is 
treated  in  its  general  theory  more  like  a  strict  proceeding  m 
and  it  is  not  necessary  to  make  those  in  interest  parties 


rem; 


130  Scott's   Estate,   124   Cal.   671;  -^  Wells  v.  Wells,   144  MoJOS; 

Moore  v.  Gubbins  54  111.  App.  163;  Reformed,    etc.,    Church   v.    Nelson, 

Storey's    Will,    20    111.    App.    183;  35  0.   S.  638. 

120  111    244;   McDonald  v.  McDon-  -3  McDonald    v.    McDonald,    142 

aid,    142   Ind.    55;    Wells   v.   Wells,  Ind.  55. 

144  Mo.   198;   Holt  v.  Lamb,  17  O.  i*^  Hamilton's    Estate,    120     Cal. 

S     374;    Reformed,   etc.,   Church   v.  421. 

xt'  ,          Q^  n    s    fi-^R  145  Protestant  Orphan  Asylum  v. 

Nelson,  35  O.  b.  b.5».  j.    nft  Pnl    44'^-  Rtew- 

140  Miller's    Estate,    159    Pa.    St.  Superior  Court,  116  Cal    443^  btew 

art  V.  Hall,   100  Cal.  246;   Bacigal- 

iIiMcMaken  v.  McMaken,  18  Ala.  upo  v.  Superior  Court,  108  Cal.  92; 

576;  Moore  v.  Gubbins,  54  111.  App.  40  Pac    1055 

163 ;  Reformed,  etc..  Church  v.  Nel-  "«  Stewart  v.  Hall,  100  Cal.  .4b. 
son,  35  O.  S.  638;  Holt  v.  Lamb,  17 
O.  S.  375. 


378  LAW    OF    WILLS. 

to  the  appeal  or  contest.     It  is  sufficient  to  give  such,  notice  as 
is  required  by  the  local  statute.^ ^^ 

§325.     Who  may  contest. 

The  statutes  generally  provide  that  'any  person  interested' 
adversely  to  the  will  or  'any  person  aggrieved'  by  its  admis- 
sion to  probate,  may  contest  such  will..^'**  Under  these  stat- 
utes a  person  who  would  take  more  if  the  will  were  denied  pro- 
bate than  if  it  were  admitted  to  probate  is  a  person  interested 
adversely  to  the  will.^'*^  Thus  a  legatee  under  a  prior  will 
may  contest  a  later  will  which  revokes  the  earlier  one,^^°  even 
before  the  earlier  will  has  been  formally  probated.^ ^^  So  a 
widow  who  would  take  as  heir  under  the  statute,  in  addition  to 
her  dower  rights,  may  contest  a  will  by  which  she  is  given  less 
than  she  would  receive  if  her  husband  had  died  intestate.^^^ 

In  addition  to  this  class  of  persons,  it  is  also  held  that  such 
persons  as  have  the  first  right  to  administer  the  estate  may 
contest  a  will  whereby  an  executor  is  appointed,  even  though 
the  will  does  not  affect  their  share  in  testator's  estate  adversely 
to  their  interests.^ ^^     But  one  whose  share  in  testator's  estate 

147  Tompkins  v.  Tompkins,  1  Sto-  536;  Shepard's  Esta.te,  170  Pa.  St. 
ry,  C.  C.  547;  Hunt  v.  Acre,  28  323;  Kenyon  v.  Saunders,  18  R.  I. 
Ala.  580;  Thomas  v.  Wood,  61  Ind.       590;  30  Atl.  470. 

132;    Parker    v.    Parker,    11    Cush.  1*9  Kostelecky    v.    Scherhart,     99 

(Mass.)     519;    Wells    v.    Child,    12  To.  120;  Murry  v.  Hennessy,  48  Neb- 

Allen   (Mass.)   330;  Crippen  v.  Dex-  008;    Snow    v.    Hamilton,    90    Hun, 

ter,  13  Gray    (Mass.,     330;   Bonne-  157;  Cochran  v.  Young,  104  Pa.  St. 

mort  V.  Gill,   167  Mass.  338;   Brig-  333;   Kenyon  v.  Saunders,   18  R.  I. 

ham    V.    Fayerweather,    140    Mass.  590. 

411;    Miller's    Estate,    166    Pa.    St.  iso  McCutehen     v.     Loggins,     109 

97;  Linch  v.  Linch,  1  Lea     (Tenn.)  Ala.   457;    McDonald   v.   McDonald, 

526 ;  WoodruflF  V.  Taylor,  20  Vt.  65 ;  142    Ind.   55;    Kostelecky  v.    Scher- 

Wills  V.  Spraggins,  3  Gratt.    (Va.)  hart,  99  lo.  120;  Dower  v.  Church, 

555;    Sehultz  v.   Sehultz,   10  Gratt.  21    W.   Va.    23. 

(Va.)    358.  151  Kostelecky    v.     Scherhart,    99 

148  Lockard     v.    Stephenson,     120  To.   120. 

Ala.    641;    24    So.    996;    Hickman's  i52  Moyses     v.     Neilson,     t)     Ohio 
Estate,  101  Cal.  609;   36  Pac.  118;  S.  &  C.  P.  Dec.   (Ohio  Dec),  623. 
.Tele    V.    Lemberger,    163    111.    338;  ir.3  Watson   v.   Alderson,    146   Mo. 
Kostelecky  V.  Scherhart,  99  lo.  120:  333.      "The    next    of    kin    were    en- 
Biles  V.  Dean,  —  Miss.  — ;    14  So.  abled  to  contest  the  validity  of  the 


■LAW    OF    WILLS. 


379 


is  affected  adversely  by  the  will,  may  contest  -^f^^^"^:^^ 
he  is  debarred  by  law  from  administering  testators  estate. 
Thus  in  Rhode  Island  it  is  held  that  a  convict,  though  not  al- 
lowed to  administer  his  wife's  estate,  may  contest  1-^  w^^^  ^- 
eluding  him  from  the  share  which  he  would  have  had  m  her 
estate  had  she  died  intestate.^^^ 

One  who  is  not  benefited  by  having  the  will  set  aside  either 
by  taking  a  share  of  decedent's  estate,  or  by  obtaining  the  hrst 
Xht  to  administer,  can  not  contest  the  will.-^  Thus  one  who 
would  have  taken  had  testator  died  intestate,  but  who  took 
xnore  under  the  will  than  he  would  have  taken  had  testator  died 
intestate,  can  not  contest  such  will.-^  Nor  can  a  non-resi- 
dent alien,  who  is  by  the  law  of  the  state  incapable  of  inheri^ 
ing  real    estate,   contest  a  will  devising    real    estate.  A 

widow  of  decedent  who,  by  an  ante-nuptial  agreement,  has 
determined  her  property  rights  so  that  they  are  in  no  way  af- 
fected by  the  will,  can  not  contest,-^  nor  can  a  creditor  of  de- 
cedent contest  the  will.^^^  And  one  in  possession  of  rea  ty,  not 
an  heir  of  decedent,  can  not  resist  the  probate  of  a  will  by  pur- 
chasers of  such  realty  from  devisees  under  such  will  though 
they  can  not  make  out  title  to  such  realty  until  the  will  is  pro- 


will  'as  of  common  right.'  Of  com- 
mon right,  because  to  them  the  ad- 
ministration of  the  goods  of  the  de- 
ceased 'ought  to  be  committed  if 
he  died  intestate.'  This  common 
right  is  secured  to  them  by  our 
statute,  and  is  independent  of  the 
pecuniary  results  to  them  of  the 
contest."     Watson  v.  Alderson,   146 

Mo.   333;   Fallon's  Will,  107  lo.   120, 

citing    Sanborn's    Estate,    98    Cal. 

103;    Hickman's    Estate,    101    Cal. 

609;   Maurer   v.   Naill,   5  Md.   324; 

Middleditch   v.   Williams,   47   N.   J. 

Eq.  58.5 ;   Franke  v.  Shipley,  22  Or. 

104. 

i5*Kenyon  v.   Saunders,  18  E.  I. 

590. 

i55Lockhart   v.     Stephenson,    120 
Ala.  641 ;  24  So.  996 ;  McCutchen  v. 


Loggins,   109    Ala.  457;     Sanborn's 

Estate,  98   Cal.   103;    32   Pac.   865; 

Jele  V.  Lemberger,  163  111.  338  ;  Wil- 

coxon    V.    Wilcoxon,    165    111.    454; 

Biggerstaflf  v.  Biggerstaff,    95    Ky. 

154;  Biles  v.  Dean,  —  Miss.  — ;  14 

So.   536;   Middleditch    v.    Williams 

47   N.   J.   Eq.   585;    Lewis  v.  Cook, 

150  N.  Y.  163;    Franke  v.  Shipley, 

22  Oreg.  104;  Shepard's  Estate,  170 

Pa.  St.  323. 

156  Biles    V.    Dean,   —   Miss.   — ; 
14  So.  536. 

157  Jele    V.    Lemberger,     163     111. 

338. 

158  Biggerstaflf   v.    Biggerstaff,    95 

Ky.    154. 

159  Montgomery  v.  Foster,  91  Ala. 

613. 


380  LAW    OF    "WILLS. 

bated  and  an  ejectment  suit  is  pending  to  which  such  possessor 
is  defendant.i*5° 

In  some  states  a  public  administrator  is  appointed  by  law  to 
administer  the  estates  of  decedents  under  certain  circum- 
stances specified  in  the  statutes — generally  in  case  decedent 
dies  intestate,  and  has  within  the  state  no  relative  competent 
to  act  as  administrator.  Such  administrator  can  not,  by  reason 
of  his  interest  in  the  fees,  contest  decedent's  will,^^^  nor  can  an 
executor,  in  his  official  capacity,  contest  the  probate  of  a  codi- 
cil which  revokes  his  appointment.-^^"  The  creditor  of  an  heir 
of  decedent  can  not  contest  decedent's  will  disinheriting  such 
heir  by  reason  of  creditor's  hopes  or  expectations  of  being  paid 
out  of  the  heir's  share  of  decedent's  estate.-' ^^  But  where,  be- 
fore probate  of  the  will,  a  judgment  creditor  of  one  heir 
levies  upon  such  interest  in  testator's  real  estate  as  the  heir 
would  have  inherited  had  testator  died  intestate,  and  upon  ju- 
dicial sale  of  the  heir's  interest  in  such  property  such  judg- 
ment creditor  buys  it  in,  it  is  held  that  the  judgment  creditor 
has  such  interest  that  he  may  contest  the  will.-*^"* 

One  who  purchases  land  from  an  heir  of  testator  after  the 
probate  of  a  will  whereby  the  heir  is  disinherited,  can  not  con- 
test such  will,  even  though  the  heir  had  a  contingent  remain- 
der in  the  land  after  the  death  of  testatrix,  subject  to  be  de- 
feated by  disposition  by  will.^^^  If  the  proponents  of  the  will 
deny  the  fact  of  contestant's  interest  in  the  estate  of  testator, 
he  must  prove  such  interest  as  entitles  him  to  contest  the  will, 
in  order  to  establish  his  standing  in  court.^*^^     It  is  said  that 

160  Johnson      v.       Bard       (Ky.)  iC4  Smith  v.  Bradstreet,   16  Pick. 

(1900),  54  S.  W.  721.  (Mass.)    264;    In   re   Lange\an,    45 

161  Sanlx)rn'8  Estate,  98  Cal.  103 ;  Minn.  429,  Watson  v.  Alderson,  140 
32  Pac.  865;  Hickman's  Estate,  101  Mo.  333. 

Cal.   609;    36  Pac.   118.  iss  McDonald    v.    White,    130    111. 

162  Stewart's  Estate,   107  lo.  117,       493. 

citing    In    re    Langevin,    45    Minn.  ise  Solari  v.  Barras,  45  La.  Ann. 

429;   Meyer    v.    Fogg,    7    Fla.  292;  1128:   Pattee  v.  Stetson,   170  Mass. 

68   Am.  Dec.  441;   Reid  v.  Vander-  93    (where  it  was  denied  that  con- 

heyden,    5    Cow.    719.  testant  was  wife  of  testator)  ;  Rog- 

i63Lockhard    v.    Stephenson,    120  er's  Estate,  154  Pa.  St.  217    (where' 

Ala.    641 ;    24    So.    996 ;     Shepard's  it  was   denied   that  contestant  was 

Estate,    170    Pa.    St.    323;    Cochran  son  of  testator). 
V.  Young,  104  Pa.  St.  333. 


oo-j 

LAW     OF     WILLS. 


this  issue  should  be  tried  first.^«^  When  contestants  claim  no 
more  ^or  their  interest  in  testator's  estate  than  that  thev  thmk 
that  thev  were  legally  adopted  by  testator,  and  believe  that 
they  can  prove  it,  they  have  no  standing  in  court  to  contest  the 

wilL^^« 

It  is  held  that  the  right  to  contest  does  not  survive  where  a 
party  who  had  a  right  to  contest  dies  before  suit  is  brought.  In 
this  case  the  party  having  the  right  to  contest  was  non  compos 
mentis  when  testator  died,  and  he  died  after  the  time  for  con- 
test had  elapsed  although  the  statute  made  an  exception  m 
his  favor,  it  was  held  that  neither  his  heirs  nor  his  administra- 
tor could  contest.1^^  But  where  contestant  died  after  suit  was 
brought,  the  court  assumed,  rather  than  expressly  decided  that 
the  action  would  survive,  discussing  at  length  the  necessity  of 
giving  the  heirs  notice,  and  deciding  that  such  notice  need  not 

be  given.^^'^ 

Local  practice  differs  as  to  the  right  of  one  who  was  not 
formallv  made  a  partv  to  the  probate  in  common  form  to  con- 
test thJ  will  by  calling  for  probate  in  solemn  form.     Where 
the  contest  is  had  in  a  new  action  there  is  no  restriction  upon 
parties  interested  adversely  to  the  will,  who  were  not  parties 
to  the  probate  in  common  form;   but  any  party  interested  may 
contest,  whether  he  took  part  in  the  proceedings  of  original 
probate  or  not.     Where  the  contest  assumes  the  form  of  an  ap- 
peal some  courts  hold  that  any  party  interested  may  appeal, 
whether  he  took  part  in  the  probate  or  not,^^i    ^^^nle   other 
courts  hold  that  they  must  become  parties  to  the  proceedmg 
below,  in  order  to  have  a  right  to  appeal  from  the  order  ad- 
mitting the  will  to  probate.1^2      parties  not  notified  of  the 
pendency  of  probate  proceedings  may,  "by  petition  to  the  pro- 

167  Meyer   v.    Henderson,    88    Md.  i7i  Ouachita    Baptist    College    v. 

585;    Roger's    Estate,    154    Pa.    St.  Scott,  64  Ark.   349;   Meyer  v.  Hen- 

217  derson,  88  Md.   585. 

lesRenton's     Estate,     10     Wash.  i72  Blakely    v.    Blakely,    .33    Ala. 


533 


611;    Leslie   v.   Sims,    39   Ala.    161: 
i69Storrs  V.   St.  Luke's  Hospital,       Reese  v.  Nolen,  99  Ala.  203;   13  So. 

180  HI.   368,  affirming  75  HI.   App.       677;    Dugan   v.    Northcutt,    7    App. 

152.  ^-  C-  351. 

iToBonnemort  v.  Gill,   167   Mass. 

338. 


382  l^W    OF    WILLS. 

bate  court,  propound  their  interest,  and  after  giving  notice  to 
the  party  having  an  interest,  have  themselves  made  parties 
to  such  a  decree,  so  as  to  prosecute  appeal  therefrom."  ^"^^ 

§326.     Estoppel. 

Parties  who  would  ordinarily  be  included  under  the  gene- 
ral class  of  those  having  a  right  to  contest  a  will  may,  how- 
ever, have  so  acted  as  to  estop  themselves  from  contesting  its 
validity.  The  general  and  well-recognized  principles  of  the 
law  of  estoppel  are  applicable,  and  need  no  discussion  further 
than  an  illustration  of  their  application  to  the  facts  which 
arise  on  contest. 

Where  a  testator  has  made  a  contract  with  his  children  or 
other  heirs  and.  next  of  kin,  by  which  they  agree  upon  valuable 
consideration  not  to  contest  his  will  for  any  reason,  circuity  of 
action  is  avoided  by  treating  such  a  contract  as  estopping  them 
from  contesting  testator's  will.^^^ 

Such  a  contract  is  held  to  be  valid  and  enforceable,  and  not 
contrary  to  public  policy,  and  may  be  pleaded  as  defense  by 
the  executor  in  a  suit  to  contest  the  will.^'^^ 

Such  a  contract  binds  only  the  parties  thereto.  It  is  ac- 
cordingly reversible  error  to  exclude  evidence  tending  to  show 
that  one  of  the  plaintiffs  did  not  enter  into  the  agreement.-' ^^ 
So  upon  the  familiar  principle  that  no  one  can  be  pennitted 
to  occupy  antagonistic  and  inconsistent  positions  upon  an  issue 
in  litigation,  no  one  who  is  a  beneficiary  under  the  will  and 
with  full  knowledge  of  the  facts,  receives  and  retains  his  legacy, 
can  contest  the  will.^'^^ 

Where  the  facts  material  to  the  contest  are  not  known  to 


173  Reese    v.   Nolan,   99    Ala.   203;  Gore  v.  Howard,  94  Tenn.  577. 
13  So.  677;  Lyons  v.  Hammer,  84  Ala.  I's  Garcelon's  Estate,  104  Cal.  570. 

197;    Kumpe   v.    Coons,  63   Ala.  448;  i'«  Gore  v.  Howard,  94  Tenn.  577. 

Hall  V.  Hall,  47  Ala.  290 ;  Clemens  v.  i "  Bartlett    v.     Manor,     146    Ind. 

Patterson,  38  Ala.  721.  621;     Madison     v.     Larmon,     170 

1'*  Garcelon's  Estate,  104  Cal.  570;  111.    65;     Andrews    v.    Andrews, 


LAW    OF    WILLS.  ^8? 


contestant,  or,  are  fraudulently  concealed  from  him,  he  is  not 
estopped  to  contest  by  his  conduct  in  accepting  the  legacy.^ ^^ 

It  is  held,  in  some  jurisdictions,  that  a  beneficiary  who  re- 
turns his  legacy  to  the  executor  before  bringing  suit  to  contest 
the  will,  is  not  estopped  from  contesting.^  ^^  But  where  bene- 
ficiary was  induced  to  accept  the  legacy  by  fraudulent  conceal- 
ment of  material  facts,  it  was  held  that  beneficiary  was  not 
obliged  to  return  the  legacy  as  a  condition  precedent  to  bring- 
ing suit.^*^ 

Where  the  share  of  the  beneficiary  under  the  will  is  less 
than  it  would  be  if  it  were  set  aside,  it  is  held  in  some  jurisdic- 
tions that  the  beneficiary  may  accept  and  retain  his  legacy 
under  the  will  without  being  thereby  estopped  to  contest  the 
wilL^si 

An  executor,  however,  is  not  estopped  to  contest  the  will,  or 
to  claim  property  disposed  of  by  it  as  his  own.^®* 

§827.     Who  may  defend. 

The  executor,  under  the  practice  now  prevalent  in  most 
states,  should  be  a  party  to  the  contest,  and  may  defend  the 
will.^^^  It  is  proper  even  after  contest  has  begun  to  appoint  an 
administrator  with  the  will  annexed,  and  make  him  a  party 
to  the  contest  if  the  executor  does  not  qualify.^  *^  And  it  is 
held  that  an  executor,  named  by  the  first  will,  may  contest  pro- 
bate of  a  second  will,  whereby  the  first  is  revoked,  as  part  of 
his  duty  of  defending  the  will.^^^  But  where  the  will  affects 

110  111.  223;    Gorham  v.  Dodge,  122  iso  White  v.  Mayhall,  —  Ky.  — ; 

111.  528;  White  v.  Mayhall,  —  Ky.  25  S.  W.  881. 

— ;  25  S.  W.  881;  Miller's  Estate,  isi  Bates  v.    Smith,   3   Cincinnati 

159    Pa.    St.    562;    Miller's    Estate,  Law   Bull.    344    (Ohio). 

166    Pa.    St.    97;    Pryor   v.   Pendle-  1 82  Tyler    v.    Wheeler,    160    Mass. 

ton,  92  Tex.  384.  206. 

Apparenthj  contra,  Fifield  v.  Van  iss  Whetton's   Will,   98   Cal.   203 ; 

Wyck,  94  Va.  557.  Campbell  v.  Campbell,  130  111.  466; 

178  White  V.  Mayhall,  —  Ky.  — ;  Hesterberg  v.   Clark,    166   111.   241; 
25  S.  W.  881   (where  the  fact  of  the  Bardell  v.  Brady,  172  111.  420. 
incapacity   of   testator  was  fraudu-  is*  Crocker    v.     Balch,    —    Tenn. 
lently  concealed).  ^900)  ;  55  S.  W.  307. 

179  Miller's    Estate,    159    Pa.    St.  ise  Connelly    v.    Sullivan,    50    111. 
562;    Miller's    Estate,    166    Pa.    St..  Anp.    Q27. 

97. 


384 


LAW    OF    WILLS. 


the  title  to  real  estate  onlj,  and  no  interest  in  or  power  con- 
cerning the  same  is  devised  to  the  executor,  he  is  held  not  to  be 
a  necessary  party  to  a  contest.^  ^^ 

The  legatees  are  necessary  parties/ ^''^  and  the  husband  of  a 
legatee  is  a  proper  and  necessary  party. -^^^ 

One  who  has  acquired  the  legal  title  to  testator's  real  estate 
from  a  devisee  under  a  probated  will,  is  a  proper  party  defend- 
ant to  a  suit  to  contest  such  will.^*^^ 


§328.     Pleadings. 

In  contest  proceeding  some  pleading  on  the  part  of  contestant 
at  least  is  required.  The  form  of  the  petition  filed  by  contest- 
ant depends  largely  upon  local  procedure  and  upon  the  issue  in 
probate  and  contest.^  ^'^ 

186  Fox  V.  Fee,  49  N.  Y.  Supp. 
292,  citing  Miller  v.  R.  R.  132  U. 
S.  662,  distinguishing  McArthur  v. 
Scott,  113  U.  S.  340. 

187  Moore  v.  Gubbins,  54  111. 
App.   163. 

188  Burnett  v.  Milnes,  148  Ind. 
230  (A  suit  to  vacate  a  judgment 
refusing  to  admit  a  will  to  pro- 
bate. ) 

189  Roberts  v.  Abbott,  127  Ind. 
83. 

190  See  Sec.  329. 

Where  the  issue  is  fixed  by  stat- 
ute, and  is  the   common  law  issue, 

'devisavit    vel    non'    ( )    is   the 

writing,  purporting  to  be  the  last 
will  and  testament  of  A.  B.  de- 
ceased, the  last  will  and  testament 
of  A.  B.  deceased  ( ),  an  ap- 
proved form  of  petition  is  as  fol- 
lows: 
In  the  Court  of , 


State  of 


County, 


E.  F.  and  G.  H., 

PlaintiflFs, 

V. 

K.  L.,  as  executor  of  the  last  will 
and  testament  of  A.  B.,  de- 
ceased, M.  N.  and  O.  P., 

Defendants. 


Petition. 

A.   B.    died   on   the  day   of 

,  A.  D.  19—.     Plaintiffs  are  his 

children  and  his  sole  heirs  at  law. 

On   the  day   of  A.   D. 

19 — ,  a  certain  paper  writing  pur- 
porting to  be  the  last  will  and 
testament  of  the  said  A.  B.  de- 
ceased,    which     said     writing     was 

dated  the  day  of  •  A.  D. 

19 — ,    was    presented    to    the    

court  of  said  County  and  was 

admitted    to    probate    by    the    said 

court  of  said  County    on  the  

day    of    A.    D.    19 — ,    and    is 

recorded  in  Volume  page  

of  the  Record  of  Wills  in  said 
court. 

Letters  testamentary  thereon 
were  thereupon  issued  by  said  court 
to  the  defendant,  K.  L.  as  sole  ex- 
ecutor thereof,  who  thereon  gave 
bond  and  qualified. 

By  the  terms  of  said  paper  %vTit- 
ing  all  the  defendants  herein  are 
named  as  the  several  legatees  and 
devisees   of   said   A.    B.   deceased. 

Said  paper  writing  is  not  the 
last  will  and  testament  of  said 
A.    B.    deceased. 


LAW     OF    WILLS. 


385 


Under  some  codes,  the  separate  grounds  of  attack,  such  as 
lack  of  mental  capacity,  undue  influence,  duress,  fraud  and  the 
like,  need  not  be  separately  paragraphed.^"^  But  the  petition 
must  make  out  a  piima  facie  case  of  the  invalidity  of  the 
will.^"^  Thus,  a  contest  on  the  ground  of  mistake,  can  not  be 
maintained  when  it  appears  from  the  whole  caveat  that  the 
mistake  was  not  such  as  was  contemplated  by  statute.-^  "^ 

§329.     Issue  in  prol)ate  and  contest. 

The  different  jurisdictions  may  be  divided  into  two  classes 
according  to  the  rule  as  to  the  issue  in  probate  and  contest.  In 
the  first  class  the  issue  is  fixed  by  statute  and  is  practically  the 
old  common  law  issue  devisavlt  vel  non — is  it  the  last  will  and 
testament  of  testator  or  not.  In  jurisdictions  of  this  class  since 
the  issue  is  fixed  by  statute,  and  can  not  be  varied  by  the  plead- 
ings, the  form  which  the  issue  assumes  in  the  pleadings  is 
immaterial.-^"'* 


Wherefore  plaintiffs  pray  •  that 
an  issue  may  be  made  up  whether 
said  paper  writing  is  the  last  will 
and  testament  of  said  A.  B.  de- 
ceased, or  not ;  that  upon  the  trial 
of  said  issue,  said  paper  writing 
may  be  declared  not  to  be  the  last 
will  and  testament  of  said  A.  B. 
deceased,  and  for  such  other  and 
further  relief  as  plaintiffs  may  be 
entitled  to  in  law  or  equity  by  rea- 
son of  the  premises. 


Attorney  for 
PlaintiflTs. 


State  of 


County,  ss. 


E.  F.  being  first  duly  sworn  says 
that  he  is  one  of  the  plaintiffs 
herein,  and  that  the  allegations  of 
the  foregoing  petition  are  true  as 
he  verily  believes. 


Sworn  to  before  me  by  the  afore- 
said  E.   F.   and   by   him   subscribed 

in  my  presence  this day  of 

A.  D.  19—. 


[Official  Capacity.] 

In  Dew  V.  Reid,  52  0.  S.  519, 
this  form  of  petition  was  used  with 
the  addition  of  certain  grounds  of 
contest,  which  were  treated  by  the 
court  as  surplusage. 

19  i  McDonald  v.  McDonald,  142 
Ind.  55. 

192  Lyons  v.  Campbell,  88  Ala. 
462. 

io3Meeks   v.    Lofley,    99   Ga.    170. 

194  Eraser  v.  Jennison,  106  U.  S. 
191;  Sinnett  v.  Bowman,  151  111. 
146 ;  37  N.  E.  885 ;  In  re  Hathaway, 
46  Mich.  326;  Pratt  v.  Hargreaves, 
75  Miss.  8918;   23  So.  519;  Carl  v. 


386  LAW    OF    WII.LS. 

Hence,  the  petition  may  in  such  states  be  amended  after  the 
limit  for  contesting  the  probate  has  expired  by  adding  new 
grounds  of  contest,  since  imder  the  statutory  issue  every  ground 
of  attack  upon  the  validity  of  the  will  may  be  employed.^^^ 
Nor  need  the  petition  allege  such  specific  grounds  as  undue  in- 
fluence and  insanity  in  order  to  introduce  evidence  upon  such 
points.^*^^  Thus  it  is  sufficient  to  assign  as  the  only  groimd 
of  appeal  that  "said  instrument  was  not  the  last  will  and  tes- 
tament of  said  deceased."  ^^^  And  where  the  petition  in  con- 
test alleges  only  want  of  sound  mind  and  memory,  and  imdue 
influence  as  the  grounds  of  contest,  contestant  may  at  the  trial 
introduce  evidence  tending  to  show  that  the  will  offered  was  not 
executed  in  accordance  with  the  law.^^® 

Where  such  issue  is  prescribed  by  statute,  no  advantage  can 
be  taken  of  an  omission  to  file  an  answer,^ ^^  and  it  is  error  to 
render  judgment  upon  demurrer  to  the  answer,  without  the  in- 
tervention of  a  jury.2^"  In  jurisdictions  of  the  other  class 
either  the  statutes  or  the  rules  of  court  require  that  the  grounds 
of  contest  shall  be  specifically  stated,  and  that  no  evidence  shall 

Gabel,  120  Mo.  28.3;  25  S.  W.  214;  In  states  of  this  class  by  statuta 

Gordon    v.    Burris,    141    Mo.    602;  the  issue  may  be  made  up  by  a  jour. 

Dew   V.   Reid,    52   O.   S.   519;    Win-  nal  entry. 

disch,    etc.,    Co.    v.    Opp,    17    Oliio       In  the  Court  of  , 

C.  C.  4G5;   Liscomb  v.  Eldredge,  20  County, 

R.  I.  335 ;  38  Atl.  1052.  E.  F.  and  G.  H., 

195  Sinnett    v.    Bownan,    151    111.  Plaintiffs, 
146;  37  N.  E.  885.  v. 

196  Pratt  V.  Hargreaves,  75  Miss.  K.  L.,  as  executor  of  the  last  will 
808;  23  So.  519;  Carl  v.  Gabel,  and  testament  of  A.  B.,  de- 
120  Mo.  283;  25  S.  W.  214.  ceased,  M.  N.  and  O.  P., 

197  Lane  v.  Hill,  68  N.  H.  275  and  Defendants. 
398.  Entry. 

198  Dew  V.  Reid,  52  0.  S.  519,  It  is  hereby  ordered  by  the  court 
citing  and  following  Green  v.  Green,  that  an  issue  be  and  the  same  is 
5  0.  279;  Brown  v.  Griffiths,  11  hereby  made  according  to  law, 
0.  S.  329 ;  Walker  v.  Walker,  1 1  whether  the  paper  writing  produced, 
O.  S.  157;  Haynes  v.  Haynes,  33  purporting  to  be  the  last  will  and 
O.  S.  598.  testament  of  A.  B.  deceased,  is  the 

199  Crenshaw  v.  Johnson,  120  N.  last  will  and  testament  of  said  A. 
Car.  270;  Green  v.  Green,  5  O.  279.  B.  deceased,  and  that  a  jury  be  im- 

200  Walker    v.    Walker,    14    O.    S.       paneled  to  try  said  issues. 
157:    Holt  V.   Lamb;    17   O.   S.    374. 


LAW    OF    WIIXS.  387 

be  introduced  upon  issues  not  thus  specified.^"!  But  where  this 
is  required  it  is  held  sufficient  to  state  the  ultimate  facts,  with- 
out pleading  the  evidence  by  which  such  ultimate  facts  are  to 
be  established.  Thus  it  is  sufficient  to  allege  that  the  will  "was 
not  duly  executed."^*^^ 

An  issue  as  to  whether  the  will  were  caused  bv  the  "undue 
importunities,  suggestions  and  persuasions  of  another  person 
or  other  persons"  was  sustained  as  not  too  general,-"^  and  con- 
testants mav  allege  as  many  gTounds  as  they  expect  to  attempt 
to  establish  by  evidence.  Thus,  it  is  error  to  compel  them  to 
elect  between  an  allegation  of  forgery  and  one  of  undue  in- 
fluence.^^'^ 

The  issue  should  not,  however,  be  duplicated.  Thus,  where 
one  issue  was  made  up  as  to  the  statutory  definition  of  testa- 
mentary capacity — if  testator  had  a  sound  and  disposing  mind 
and  was  capable  of  making  a  valid  deed  or  contract,  it  was 
held  proper  to  refuse  to  permit  an  additional  issue  as  to 
whether  testator  had  'sufficient  mental  capacity  to  know  his 
property,'  etc.,  under  the  common  law  definition  of  testamen- 
tary capacity."*^^ 

Where  an  issue  had  been  awarded  in  the  language  of  the 
statute  as  to  whether  testator  was  of  "sound  and  disposing 
mind  and  capable  of  executing  a  valid  deed  or  contract,"  it 
was  proper  to  refuse  another  issue  on  insane  delusion.20« 


201  Barksdale  v.  Davis,  114  Ala.  144  Ind.  189;  National  Safe  De- 
623;  Thompson  V.  Rainier,  117  Ala.  posit,  etc.,  Company  v.  Sweeney,  3 
318;  Redfiold's  Estate,  116  Cal.  637  App.  D.  C.  401. 

(construction    of   petition);     In   re  203  National     Safe    Deposit,     etc., 

Kile,  72  Cal.  131;  Learned's  Estate,  Company  v.  Sweeney,  3  App.  D.  C. 

70    Cal.    141;     Dalrymple's    Estate,  401.. 

67    Cal.    444;    Livingston's    Appeal,  204  McDonald    v.    McDonald,     142 

63  Conn.   68  ;   26  Atl.  470 ;   McDon-  Ind.  55. 

aid  V.  McDonald,  142  Ind.  55;  Wen-  205  National    Safe    Deposit,    etc., 

ning  V.  Teeple,  144  Ind.   189;   Hud-  Co.  v.   Sweeney,   3  App.  D.  C    401;' 

son  V.  Hughan,  56  Kan.  152;  Meyer  Connelly  v.  Beal,  77  Md.  116;  Pegg 

V.  Henderson,  88  Md.  585;   42  Atl.  v.  Warford,  4  Md.  385;  Warford  v. 

241.  Van  Sickle,  4  Md.  397. 

202  Barksdale   v.    Davis,    114   Ala.  206  National     Safe     Deposit,     etc. 
623;    Thompson  v.  Rainier,  117  Ala.  Co.   v.   Sweenev,   3  App.   D.   C.   401 
318;  23  So.  782:  Wenningv.  Teeple. 


388  LAW     OF     WILLS. 

The  issue  in  a  contest  ought  not  to  be  obscured  by  intro- 
ducing questions  as  to  the  title  of  certain  realty ,^*^'^  or  as  to 
the  question  of  the  satisfaction  of  a  legacy,^"^  or  as  to  the 
legitimacy  of  an  alleged  child.^*^^ 

It  was  held  error  to  frame  the  issue  "whether  the  execution 
of  said  paper  writing  was  procured  by  undue  influence  ex- 
eijcised  and  practiced  upon  said  J.  V.  and  constraining  his  will 
therein,"  as  the  court  thereby  attempted  to  define  the  degree 
of  undue  influence  which  would  invalidate  the  will.^^^ 

§330.     Procedure  at  trial. — Open  and  close. 

The  order  of  introducing  evidence  upoii  the  trial  of  a  will 
contest  difters  greatly  in  the  different  states,  and  it  is  usually 
controlled  by  statute. 

In  most  states  the  proponent  h-a&  the  right  to  open  and  close 
since  he  has  the  burden  of  proof  as  to  the  validity  of  the  will, 
under  the  theory  entertained  in  most  jurisdictions.^^ ^  This 
is  also  the  rule  where  the  question  is  as  to  the  domicile  of  dece- 
dent and  the  location  of  his  personal  property,  in  order  to  de- 
termine the  jurisdiction  of  the  court,  and  no  question  is  made 
as  to  the  validity  of  the  will.^^"  Concurrent  with  this  right 
is  the  right  of  the  proponent  to  open  and  close  the  argument.^^^ 

Where  the  object  of  the  suit  is  on  the  part  of  proponents 
to  establish  one  will,  and  on  the  part  of  contestants  to  have  this 
will  declared  invalid  and  an  earlier  one  admitted  to  probate, 

207  Vidal's  Succession,  44  La.  Ann.  v.  Wilton,  13  111.  15;  Sheehan  v. 
41.  Kearney    (Miss.),  21   So.  41;   35   L. 

208  Owens  v.  Sinklear,  110  Mo.  R.  A.  102;  Patten  v.  Cilley,  67  N. 
54.  H.  520;  Green  v.  Green,  5  Ohio,  278  ; 

209Warter   v,    Warter,   L.    R.    15  Brown   v.   Griffiths,    11    O.    S.    329; 

P.  D.  35.  Banning  v.  Banning,  12  O.  S.  437; 

210  Brewer  v.  Barrett,  58  Md.  587 ;  Gable  v.  Ranch,  50  S.  Car.  95 ;  In  re 
Sumwalt   V.    Sumwalt,  52    Md.  338.  Bock,   37   S.  Car.   348. 

211  Overby  v.  Gordon,  13  App.  D.  212  Qverby  v.  Gordon,  13  App. 
C.   392;    Bardell  v.   Brady,    172   111.  D.  C.  392. 

420;    Bevelot  v.   Lestrade,    153   111.  213  Banning  v.  Banning,  12  O.  S. 

625;    Moyer    v.    Swygart,    125    111.       437;    Raudebaugh   v.    Shelley,   6   O. 
262 ;  Tate  v.  Tate,  89  111.  42 ;  Rigg       S.    307. 


LAW     OF     WILLS.  389 

the  court  has  discretion  to  direct  which  party  shall  open  and 
close.^^^ 

The  rule  is  the  same  where  the  contestant  assails  the  validity 
of  the  earlier  will  on  the  ground  that  it  has  been  revoked  by 
a  later  will.^^^ 

While  in  most  states  the  proponent  has  the  right  to  open  and 
close,  the  states  may  be  divided  into  two  classes  upon  the  ques- 
tion of  the  extent  to  which  contestant  must  go  into  his  case 
in  the  first  instance. 

In  some  states,  by  special  statute,  proponents  open,  make 
out  a  prmia  facie  case  by  introducing  in  evidence  the  will  and 
a  certified  transcript  of  the  evidence  taken  in  the  probate  court, 
and  the  order  of  probate,  and  rest.  Contestants  then  offer  their 
evidence,  and  in  rebuttal  proponents  may  offer  further  evi- 
dence as  to  the  execution  of  the  will,  the  capacity  of  testator 
and  the  like.^^^ 

In  other  states  proponent  must  offer  all  his  evidence  in  chief 
upon  opening  his  case.  After  he  rests,  contestants  offer  their 
evidence.  Proponent  is  then  limited  strictly  to  rebutting  evi- 
dence, and  may  be  refused  to  offer  further  evidence  as  to  ex- 
ecution, capacity  of  testator  and  the  like.^'^'^  Even  in  these 
states  the  proponent  may  rest  on  the  prima  facie  case  made  out 
by  the  will,  the  order  of  probate  and  the  evidence  of  the  sub- 
scribing witnesses  in  the  form  allowed  by  local  procedure;  ^^* 
and  if  the  court  in  its  discretion  sees  fit  to  allow  proponent  to 
introduce  evidence  of  testator's  capacity  and  the  like  after  con- 
testants have  introduced  their  evidence,  it  will  not  be  rever- 
sible error,  unless  contestants  are  prevented  from  having  a  fair 
trial    by  exceptional  circumstances.^^  ^ 

After  the  jury  has  answered  part  of  the  questions  of  fact, 
which  dispose  of  part  of  the  issues,  and  before  the  evidence  on 

214  Bardell  V.  Brady,  172  in.  420.  218  Slingloflf    v,    Brimer,    174    111. 

2i5McCutchen     v.     Logging,     109  561  j    Hesterberg  v.   Clark,    106   111. 

Ala.   457;    19    So.    810.  241. 

2i6Sheehan  v.  Kearney,  —  Miss.  219  Slingloff    v.    Brimer,    174    111. 

— ;  21  So.  41 ;  35  L.  R.  A.  102;  Run-  561 ;  Craig  v.  Southard,  148  111.  37; 

yan  v.  Price,  15  O.  S.   1 ;   Mears  v.  Titus  v.  Gage,   70  Vt.    13:    39   Atl. 

Mears,  15  O.  S.  90.  246. 

217  Craig  V.  Southard,  1  IS  TU.  37. 


390  LAW    OF    WILLS. 

the  remaiuing  issues  lias  been  submitted,  contestant  may  dis- 
miss the  action  without  prejudice  to  a  new  action.^^" 

The  right  to  withdraw  objections  to  the  probate  of  a  will 
before  a  hearing  thereon,  is  clearly  recognized  in  some 
states.^^^  But  it  is  held  in  other  jurisdictions  that,  as 
there  are  no  parties  to  probate  proceedings,  it  is  impossi- 
ble to  withdraw  or  dismiss  proceedings.^"^  The  proponent  has 
a  right  to  be  present  at  the  hearing  and  can  not  be  excluded 
because  he  is  also  a  witness.^^^ 

§331.     Right  to  a  jury  in  contest. 

Since  the  right  to  make  a  will  is  a  creature  of  statute  law,^^"^ 
it  is  regularly  held  that  in  a  contest  of  a  will,  the  constitutional 
right  to  a  jury,  in  such  cases  as  were  triable  to  a  jury  at  the 
course  of  the  common  law,  does  not  exist.^^^ 

In  many  states  the  parties  have  no  right  by  statute  law  to 
have  a  jury  trial  in  a  contest  of  a  will,^^'^  In  some  states  the 
court  having  probate  powers  may  direct  an  issue  of  devisavit 
vel  non  to  the  law  courts  for  a  jury  trial.  This  may  be  dis- 
cretionary with  the  court."^"^  In  other  jurisdictions  it  is  man- 
datory.--* In  others  the  court  directs  the  issue  only  after  a 
preliminary  hearing,  in  which  the  evidence  adduced  against  the 
will  is  such  that  the  court  would  not  feel  obliged  to  disturb  a 
verdict  against  the  proponents  of  the  will.  If  such  evidence 
is  not  adduced  the  court  refuses  the  issue.^-^ 


220  Osborne    v.    Davies,    60    Kan.  225  Cummins  v.  Cummins,  1  Marv. 

695.  (Del.)    ('95),  423;   31  Atl.  816. 

22iYovmg  V.  Wark,  76  Miss.  829.  226  Cummins  v.  Cummins,  1  Marv. 

Where  this  is  done,  the  legal  effect  (Del.),   31   Atl.  816. 

as  to  further  procedure  is  as  if  no  227  Cummins  v.  Cummins,  1  Marv. 

objections  had  ever  been  filed.    Lane  (Del.)  423;  31  Atl.  816. 

V.  Hill,  68  K  H.  275,  398.     But  it  22s  Dugan    v.    Northcutt,    7    App. 

is   too    late   after    submission    to   a  D.   C.   351 ;   Lane  v.  Hill,   68  N.  H. 

jury.                                                  ■  275.   398. 

222  Collins   V.    Collins,    125   N.   C.  229  Lillibridge's    Estate,    133    Pa. 

98.  St.  211;  Stewart's  Will,  149  Pa.  St. 

223Heaton  v.  Dennis   (Tenn.),  52  111;  Fow's  Estate,  147  Pa.  St.  264; 

S.  W.  175.  Loeser's    Estate,    167    Pa.    St.    498; 

224  See  Sec.  323.  Pensyl's    Estate,    157    Pa.    St.    465; 


391 

LAW    OF    WILLS. 


Thus  where  the  subscribing  witnesses  testified  positively  to 
the  genuineness  of  the  signature  and  the  facts  of  execution, 
and  the  only  adverse  evidence  was  the  opinion  of  certain  wit- 
nesses that  the  signature  of  testator  was  a  forgery,  the  contest 
was  properly  refused.^^"  But  if  the  evidence  is  such  as  to 
sustain  a  verdict  in  favor  of  parties  desiring  the  issue  the 
issue  will  be  awarded.^^i  And  where  the  evidence  tends  to 
show  both  mental  incapacity  and  undue  influence,  an  issue 
should  be  awarded  on  both  grounds.232 

In  other  jurisdictions  the  parties  in  cases  where  contest  as- 
sumes the  form  of  a  petition  to  revoke  probate,  may  have  a  jury 
only  where  the  original  probate  was  "without  contest."  Hence, 
where  written  opposition  to  the  admission  of  a  will  to  probate 
was  filed,  which  was  demurred  to,  and  the  demurrer^was  sus- 
tained, it  was  held  that  this  did  not  amount  to  a  "contest.^ 
The  petitioner  might,  therefore,  have  a  jury  trial  in  his  suit 

to  revoke  probate.^^^ 

Where  the  court  transmits  such  issues  it  can  not  transmit 
issues  on  the  validity  of  part  of  the  will  only,  such  part  not 
being  distinct  from  the  rest^^^  nor  can  it  transmit  new  issues 
after  directing  prior  issues  on  the  validity  of  the  will.^^^ 

In  other  states  a  jury  trial  is  allowed  in  will  contests  as  in 
actions  at  law.^^^^  And  in  some  states  the  statute  not  only 
allows  a  jury,  but  makes  its  intervention  necessary,  so  that  it 

Rowson's  Estate,   175  Pa.   St.   150;  from  its  nonexistence  at  his  death, 

Rice's  Estate,  173  Pa.  St.  298 ;  Har-  raised  an  issue  for  the  jury.) 
vey's  Estate,  181  Pa.  St.  207;  Cole-  232  Armor's    Estate,    154    Pa.    bt. 

man's  Estate,  185  Pa.  St.  437 ;   Ca-  517.  in«rnl 

hill'sEstate,  180Pa.  St.  131;  Wid-  233  Robinson's     Estate,    106    Cal. 

dowson's   Estate,    189   Pa.   St.    338;  493. 

41  Atl.  977;  Hope  v.  Campbell    (H.  -^Fisher  v.  Boyce,  81  Md.  46^ 

L)     (1899),   A.   C.   1.  235  Meyer    v.    Henderson,    88    Md. 

230Bouglass's  Estate,  162  Pa.  St.  ^^l^^^J^^'^;^^    ^,    ,,.    ^,p. 

''Lcardner'sEstate,   164Pa.   St.  241;      ''\  '''^     'ttl     "^^''^l    s 

420       (Where   the   impossibility   of  Smith.    127    Mo.    567,    583,    28    b. 

4^u.      ^vviiei                   '     .          .  ,  .  w    191-  29  S.  W.  836;   In  re  Lau- 

testator's  getting  possession   of. his  ^"^^^'^^^    ""„ 

will    as    balanced    against   the    pre-  dy,   148  N.    Y.   4U^. 
sumption   of   its   revocation   arising 


392  LAW    OF    WILLS. 

is  error  for  the  court  to  render  judgment  on  demiirrer.^^'^  And 
in  other  jurisdictions  the  court  has  no  power  to  grant  a  non- 
suit in  a  contest.^^* 

In  some  jurisdictions  the  parties  may,  by  agreement,  waive 
a  jury  and  submit  the  issues  -to  the  court ;  ^^^  and  in  Illinois, 
even  though  the  statute  says  that  will  contests  "shall"  be  tried 
to  a  jury,  the  jury  can  be  waived,  since  "shall"  is  construed 
as  "may,""^^ 

In  still  other  jurisdictions  a  jury  is  allowed  in  will  contests, 
but  its  verdict  is  not  conclusive  as  at  common  law,  but  is  ad- 
visory merely,  as  in  feigned  issues  in  equity.^^^ 

§332.     General  powers  of  the  court. 

Where  notice  is  to  be  given  to  interested  parties,  it  is  not 
reversible  error  for  the  court,  after  assigning  an  application 
to  probate  a  will  for  hearing,  to  take  it  off  the  assignment 
docket  in  order  to  give  an  absent  heir  fuller  notice  than  he 
was,  strictly  speaking,  entitled  to.-^^ 

Where  the  parties  interested  are  not  entitled  to  notice,  it  is 
error  for  the  court  to  refuse  to  hear  an  application  for  ad- 
mission of  a  will  to  probate  until  notice  has  been  given.^'*^ 

After  an  application  for  admission  of  a  will  to  probate,  the 
court  may  allow  proponent  to  withdraw  the  will  before  a  final 
submission  of  the  case,  and  such  withdrawal,  even  after  a 
caveat  has  been  filed,  will  work  a  discontinuance,  so  that  the 
will  may  subsequently  be  re-propounded.^*^ 

237  Walker  v.  Walker,  14  0.  S.  111.  545;  Whipple  v.  Eddy,  161  111. 
157;    Holt  V.  Lamb,  17   0.  S.   374;       114. 

Cooch  V.   Cooch,   18   Ohio,   146.     In  210  Whipple  v.  Eddy,  161  111.  114. 

Ohio   a   court   has   power   to   direct  241  Medill     v.     Snyder,    61    Kan. 

a  nonsuit  in  case  of  a  total  failure  15 ;   58  Pac.  962 ;  Jones  v.  Roberts, 

of  evidence  upon  a  material  point.  96  Wis.  427 ;  70  N.  W.  685 ;  Bryant 

Edwards  v.  Davis,  30  Weekly  Law  v.   Pierce,   95   Wis.   331;    70   N.   W. 

Bull.    283;    Wagner    v.    Ziegler,    44  297. 

0.  S.  59.  242  state  v.  Buckner,  45  La.  Ann, 

238  McMahon    v.    McMahon,     100  247. 

Mo.  97;  Young's  Will,  123  N.  Car.  243  Cornelius  v.  Malone,   34  Oreg. 

358 ;  Hulson  v.  Sawyer,  104  N.  Car.  192. 

1.  244  Fisher's  Will,  49  N.  J.  Eq.  517. 

239  Clausenius  v.  Clausenius,   179 


393 

LAW    OF    WILLS. 


Evidence  as  to  when  witness  beard  of  testator's  death  is 
>i armless  error  and  not  reversible."'*'' 

'1!::;  trial  nuay  be  .Uowed  in  a  will  contest  on  n^ot.on  m  a 
nroner  caser"  and  snch  motion  is  usually  necessary  o  allow 
r^ew  of  the  weight  and  suiBciency  of  the  evidence  rn  error 
proceedings.^"  And  even  where  there  is  no  opposition  to  a 
p Xte  ot^a  testament  of  personalty,  the  court  may  be  justrfied 
hrefusing  to  admit  it  to  probate,  where  the  same  instrument 
had  been  found  to  be  procured  from  an  incompetent  testator 
by  fraud  and  undue  influence  iu^a  contest  by  the  bcir  to  test 
its  validity  as  a  devise  of  realty.-^^ 

§333.     Charge  of  court. 

Tliere  are  but  few  rules  on  the  subject  of  the  charge  of  the 
court  to  the  jury  which  are  peculiar  ^  the  law  of  wills  or  fin-l 
there  a  different  fomi  of  expression  from  ordinary  cases.  No 
attempt  can  be  made  here  either  to  repeat  in  detail  the  rules 
^vhich  govern  the  charge  of  the  court  in  general,  or  to  repeat 
the  rule  of  substantive  law  which  have  been  given  already,  and 
which  in  proper  cases  the  court  must  give  in  its  charge  to  the 
jury.^^^ 

„     ,      ,    ,v?ii    07  Tn    192  (Full  charge  as  to  sanity.)      "It 

245renton's  Will,  97  io.  u^.  v                             ^.i,   +   „+    +1,^   +imp 

2.6  Ellis  V.   Ellis,  -  Ky.  -;   46  is   not   necessary   that   at   the   time 

of  the  execution  of  said  instrument 

^•.?/Tu;ker  V.  Cole,  169  111.  150.  said    A    B    should   be    possessed    of 

24sBa.rtholick's   Will,    Ul    N.   Y.  all  the  physical  or  mental  health  01 

vi<^or  of  a  person  enjoying  the  01- 

''L  Since  many  forms  of  charges,  di^ary    strength    and    facailties    of 

either  Approved  or  specifically  crit-  body   and   mind.     He  might   indeed 

sed  by  courts  of  la's t  resort,  have  harbor   insane  delusions  and  be  an 

been  -ven  under  the  respective  top-  actual   monomaniac   on   a   topic   en- 

ics  to  wMch  they  refer,  no  attempt  tirely  disconnected  from  the  dispo- 

w  11  be  made  to  give  an  exhaustive  sition  of  his  estate,  and  at  the  same 

reofoTmso    charges  here.    Three  time  be  fully  capable  of  making  a 

set  of  forms  01          g  ^^.^^      ^^^^  ^^^^  re^une^  mere- 

'^(ChaitTs  :esr;tion    of       ly   that   he   should   be   possessed   of 

sanity)     ''Everv  person  is  presumed       sufficient    intelligence    and    memory 

r;r  f  so!nd\n-nd  until  the  con-  fairly  -^/f -^J^'/^^^X^f, 

Lrv  is  shown."     Sturdevant's  Ap-  comprehend   the   effect   of     ^hat   he 

7-nC.Z  390  •  Blough  V.  Parry,  was   doing,   to   appreciate   his   rela- 

^'     "     .    .?,  tions  to  the  natural  objects  of  his 
144  Tnd.  403. 


394  LAW    OF    WILLS. 

All  that  will  be  attempted  here  will  be  to  state  some  of  the 
applications,  peculiar  to  will  contests,  of  the  general  rules  ou 
the  subject  of  the  charge  of  the  court. 

The  court,  in  its  charge  to  the  jury,  must,  in  some  way,  refer 
to  the  instrument  offered  as  the  last  will  of  testator,  but  how 
to  do  so  without  expressing  in  some  wav  the  court's  opinion  of 
the  instrument  has  pro\'ed  of  some  difficulty.  It  is  not  erro- 
neous for  the  court  to  refer  to  such  instrument  as  a  "will"  or 
to  decedent  as  "testator"  f^^  nor  is  it  reversible  error  for  the 
court  to  refer  to  such  instrument  as  the  "pretended  will"  where 
the  rest  of  the  charge  made  it  clear  that  the  trial  court  used 
this  expression  only  to  identify  the  instrument  and  not  to  ex- 
press the  oj^inion  that  the  will  was  not  valid.  This  expression 
was,  however,  criticized  by  the  supreme  court.^^^  The  ex- 
pression "j)urported  will"  has  met  with  more  expression  of  ap- 
proval from  the  court  of  last  resort  than  the  others.^^^ 

If  the  court  has  charged  correctly  upon  a  point  it  is  not  error 
to  refuse  to  give  an  additional  correct  charge  upon  such 
jDoint.^^^ 

If  the  court  has  charged  fully  upon  the  general  question  of 
unsoundness  of  mind  and  the  different  forms  thereof,   it  is 


bounty,  and  understand  the  charac-  feeting  part  of  the  will.)  "A  will 
ter  and  consequences  of  the  provis-  may  be  void  in  part  and  valid  in 
ions  of  his  %vill;  and  that  he  should  part;  if  the  jury  should  find  that 
be  possessed  of  sufficient  intelligence  the  legacy  given  to  A  N  by  the  pro- 
and  memory  to  understand  the  na-.  visions  of  the  will  was  obtained 
ture  of  the  business  in  which  he  was  by  her  undue  influence,  then  the  leg- 
engaged,  to  recollect  the  property  acy  only  would  be  void,  and  not  the 
of  which  he  wished  to  dispose,  the  remaining  provisions  of  the  will, 
persons  to  whom  he  wished  to  con-  imless  the  jury  should  further  find 
vey  it  and  the  manner  in  which  that  the  undue  influence  extended  to 
he  desired  to  distribute  it  among  the  entire  will."  Harrison's  Ap- 
them.  If  testator,  at  the  time  of  peal,  48  Conn.  202. 
the  execution  of  said  instrument  250  Hollenbeck  v.  Cook,  180  111. 
had  the  degree  of  understanding  65 ;  Goble  v.  Ranch,  50  S.  Car.  95 ; 
and    memory    here    stated,    he    pos-  27  S.  E.  555. 

sessed   testamentary     capacity     and  251  Keithley   v,    Stafford,    126   111. 

was  in  legal  contemplation  of  sound  507. 

mind  and  could  make  a  valid  will.  252  Egbers  v.  Egbers,  177   111.  82. 

St.  Leger's  App.  34  Conn.  434.  253  Daly  v.  Daly,  183  111.  269 ;  55 

(Charge  as  to  imdue  influence  af-  N.  E.  671. 


LAW    OF    WILLS. 


395 


not  error  to  refuse  to  charge  specifically  upon  illusions  and 
liallucinations,^^'*  nor  to  refuse  to  give  a  further  definition  of 
"insane  dehision."-^^ 

If  no  evidence  is  offered  upon  a  certain  issue  the  court  may 
instruct  the  jury  to  disregard  that  issue,^^^  or  may  ignore  that 
issue  entirely ;  ^^'^  hut  it  will  be  error  to  charge  upon  such 
issue.-'^*  But  the  charge  should  not  ignore  the  presumptions 
and  inferences  which  may  be  considered  by  the  jury  together 
with  direct  evidence.^^^ 

So,  where  the  issue  is  that  of  undue  influence  it  is  not  error 
to  assume  due  execution  of  the  will  in  the  charge  to  the 
jury.-^'^ 

If  the  evidence  is  conflicting  it  is  error  for  the  court  either 
to  grant  a  non-suit  or  to  direct  a  verdict.^*^^ 

Where  the  court  is  not  requested  by  either  party  to  charge 
upon  an  issue  upon  which  evidence  is  adduced,  such  omission  is 
not  reversible  error ;  ^^^  and  where  too  many  issues  were  sent 
to  the  jury  and  the  court  instructed  them  to  find  only  on  the 
proper  issues,  it  was  held  not  to  be  reversible  error.^*^^ 

If  the  jury,  upon  sufficient  evidence,  find  specially  for  con- 
testants on  two  issues,  error  in  the  charge  on  one  issue  is  no 
ground  for  reversal,  as  the  other  finding  supports  the  judg- 
ment. ^^^ 

If  the  charge,  as  a  whole,  is  so  clear  as  not  to  mislead,  it  is 
not  erroneous,  even  though  detached  clauses  might  be  subject 
to  criticism.  Thus,  a  charge,  which  is  well  based  on  evidence, 
to  find  for  the  propounders  if  the  testator  was  of  sound  mind, 

254  Wallis    V.    Luhring,    134    Ind.  259  Hudson  v.  Adams,  20  Ky.  Law 

447;  34  N.  E.  231.  Rep.  1267;    49  S.  W.  192. 

2->3  Farmer    v.    Farmer,    129    Mo.  260  Graybeal  v.  Gardiner,  146  111. 

530.  337 ;  34  N.  E.  528. 

256  Entwistle  v.  Meikle,  180  111.  261  Gay  v.  Sanders,  101  Ga.  601 
9;  West  v.  West,  144  Mo.  119;  46  262  Turner's  Guardian  v.  King, 
S.    W.    139;    Stevens     v.     Leonard  32  S.  W.  941. 

154  Ind.  67  ;  56  N.  E.  27.  263  Adams   v.   Rodman,    102    Wis. 

257  Ellis  V.  Ellis,  —  Ky.  — ;    46       456;  modified  102  Wis.  464. 

S.  W.  521.  ,  26-tPutt    V.    Putt,    149    Ind.    30; 

258Nieman  v,  Schnitker,  181  111.      48  N.  E.  356. 
400;  Boone  v.  Ritchie   (Ky.),  1899; 
53  S.  W.  518. 


396  LAW     OF     WILLS. 

and  against  them  if  the  will  was  caused  by  undue  influence, 
was  not  so  inconsistent  as  to  require  reversal.^^^ 

An  omission  to  charge  fully  upon  incapacity  is  a  harmless 
error  where  a  subsequent  charge  supplies  the  omission.^*''^  So, 
where  certain  facts,  if  true,  clearly  were  undue  influence,  it 
was  held  not  to  be  reversible  error  for  the  court  in  one  part  of 
his  charge  to  tell  the  jury  that  such  facts  ''tended  to  show  undue 
influence,"  where  in  the  rest  of  his  charge  he  made  it  clear 
that  such  facts  were  undue  influence  if  true.^®'^ 

An  erroneous  charge  to  the  effect  that  one  of  contestants 
would  take  as  much  if  the  will  were  sustained  as  if  it  were 
overthrown,  is  reversible  error.^^^ 

A  charge  that  withdraws  competent  evidence  from  the  con- 
sideration of  the  jury  is  erroneous.  Thus,  it  is  error  to  charge 
that  forgetfulness  has  no  tendency  to  prove  want  of  capacity.^^^ 
A  charge  which  assumes  certain  facts  as  proved  which  were  not 
in  evidence  is  also  erroneous.'^*^ 

The  court  should  not,  in  its  charge,  give  excessive  and  undue 
prominence  to  part  of  the  evidence  to  the  exclusion  of  the 
rest.-" 

The  court  is  not  obliged  to  charge  the  jury  upon  abstract  law 
questions.  Thus  where  the  executor  was  not  offered  as  a  witness 
by  either  party,  but  his  competency  was  disputed  in  argument 
by  counsel,  the  court  is  not  obliged  to  charge  as  to  his  com- 
petency.^"^^ 

265Bramel  v.  Bramel,  —  Ky.  — ;  Wis.  581:  80  X.  W.  921;  MclntosL 

39  S.  W.  520;  Barkley  v.  Cemetery  v.  Moore    (Tex.  Civ.  App.)    (1899), 

Association,  15.3  Mo.  300;  Gordon  v.  53  S.  W.  611.     But  a  charge  which 

Burris,    153   Mo.   223.  states   an   hypothetical    case   is   not 

26G  Folks  V.  Folks,  —  Ky.  (1900)  ;  objectionable  as  assuming  such  case. 

54    S.   W.   837;    Gordon    v.     Burris  Gordon    v.    Burris     (Mo.)      (1899), 

153   Mo.   223;    Turner's   Appeal,   72  153  Mo.  223.     Thus  a    charge    that 

Conn.  305.  a  will  was  invalid  if  caused  by  un- 

267  Manley's    Exr.   v.    Staples,    65  due    influence    is    not    objectionable 

Vt.  370.  as  assuming  the  existence  of  the  un- 

2C.S  Culp  V.  Gulp,   142  Ind.   159.  due  influence. 

260  Bush  V.  Delano,  113  Mich.  34.  2-1  Coats  v.  Lynch.  1.52  Mo.  161. 

270  Nieman  v.   Schnitker,   181   111.  272  Crenshaw  v.   Johnson,   120   N. 

400  :  Powers'  Ex'r  v.  Powers   ( Ky. ) ,  Car.   270. 
52   S.  W.  845;   Fox  v.  Martin.   104 


LAW    OF    WILLS.  397 

As  the  credibility  of  witnesses  and  weight  of  evidence,  es- 
pecially of  opinion  evidence,  is  peculiarly  for  the  jury,  the 
court  should  decline  to  charge  upon  such  points.^'^^  It  is, 
therefore,  error  for  the  court  to  charge  the  jury  that  other  wit- 
nesses may  have  had  better  opportunities  for  observation  than 
the  subscribing  witnesses,  where  there  is  no  evidence  that  other 
witnesses  were  present.^'^^ 

In  Pennsylvania  the  court  may,  in  its  charge,  show  its  own 
opinion  as  to  the  credibility  of  the  witnesses  without  com- 
m.itting  error.^''^^ 

It  is  error  for  the  court  to  coerce  the  jury  into  an  agreement, 
by  refusing  to  discharge  them  after  it  is  evident  that  they  will 
not  agree  voluntarily,  by  threatening  to  retain  them  an  in- 
definite time  and  to  have  them  published  as  unfit  to  be  jury- 
men, and  by  charging  them  that  their  agreement  is  not  a  matter 
of  conscience  but  of  judgment.^'^^ 

It  is  error  for  the  court  to  allow  an  attorney,  after  a  witness 
has  testified  that  testatrix  had  a  very  strong  mind  and  remark- 
able memory  to  say,  "I  agree  with  you;  I  have  known  her 
most  of  my  life."  ^"^  But  where  the  verdict  of  the  jury  is  ad- 
visory merely  the  admission  of  incompetent  and  immaterial 
evidence  can  not  be  ground  for  reversal.^'^^  JSTor  is  error  in 
urging  an  agreement  reversible.^'^^ 

§334.     Evidence  sufficient  to  support  a  verdict. 

Where  a  juiy  is  allowed  by  statute  in  will  contests,  and  its 
verdict  is  not  advisory  merely,  but  has  the  effect  of  the  verdict 
of  a  jury  at  common  law,  the  same  principles  of  law  that  apply 
to  the  verdicts  of  juries  in  other  cases  are  applicable. 

If  the  evidence  upon  a  point  in  issue  is  conflicting  the  ques- 

273Burney    v.    Torrey,    100    Ala.  2-7  Goldthorp    v.    Goldthorp.    106 

157:  Turner's  Appeal,  72  Conn.  305.  To.   722;    77   N.   W.   471. 

274Xieman  v.   Schnitker,   181    111.  27s  ftj-yant  v.  Pierce,  95  Wis.  331; 

400.  70  N.   W.   207. 

275McCormick  v.  McCormick,  194  279  Jones  v.  Roberts,  96  Wis.  427; 

Pa.  St.  107;  45  Atl.  88.                '  70  N.  W.  685. 

276  Miller   v.    Miller,    187    Pa.    St. 
572;    41   Atl.   277. 


398 


LAW     OF     WILLS. 


tion  is  for  the  consideration  of  the  jury,  including  not  only 
the  direct  evidence,  but  the  inferences  that  may  be  drawn  there- 
from ;  ^^°  and  this  jDroiDosition  is  especially  true  in  cases  of 
mental  capacity  and  undue  influence.^^^  Where  the  evidence 
is  conflicting,  therefore,  the  jury  should  pass  upon  the  question 
of  the  validity  of  the  will  under  proper  instructions  from  the 
court,  and  the  verdict  should  not  be  disturbed  unless  clearly 
and  manifestly  against  the  weight  of  the  evidence.^*- 

Thus,  when  the  evidence  tended  to  show  that  two  of  testa- 
tor's sons  exerted  influence  over  him,  and  that  immediately 
after  interviews  with  them  testator  spoke  of  changing  his  will, 
and  did  change  it,  it  was  held  enough  to  go  to  the  jury.^^^ 

But  where  the  verdict  is  entirely  unsupported  by  the  evi- 
dence, or  in  some  jurisdictions  where  it  is  clearly  contrary  to 
the  weight  of  the  evidence,  the  court  will  set  it  aside.^*^ 

Thus,  where  the  only  evidence  of  mental  incapacity  is  that 
testator  was  in  bad  health  and  somewhat  absent-minded,  a 
verdict  against  his  capacity  should  be  set  aside.'^^  So,  where 
the  only  evidence  as  to  capacity  is  that  testator  was  old  and 
feeble,  and  that  his  mind  at  the  date  of  making  the  will  was 
not  as  good  as  formerly;  ^^®  and  so  where  the  only  evidence 


28oCaven  v,  Agnew,  186  Pa.  St. 
314. 

281  Lischy  v.  Schrader,  —  Ky.  —  ; 
47  S.  W.  611;  Crockett  v.  Davis,  81 
Md.  134;  Gordon  v.  Burris.  141  Mo. 
602;  Rivard  v.  Rivard,  109  Mich. 
98;  Caven  v.  Agnew,  186  Pa.  St. 
314. 

282  Brooke's  Appeal  68  Conn.  294 ; 
Harp  V.  Parr,  168  111.  459;  Kelley 
V.  Kelley,  168  111.  501;  Petefish  v. 
Becker,  176  111.  448  ;  Bever  v.  Spang- 
ler,  93  To.  576;  Allison's  Estate, 
104  lo.  130;  Hudson  v.  Hughan,  56 
Han.  152;  Morris  v.  Morton's  Ex'r, 
—  Ky.  — ;  20  S.  W.  287:  Wills  v. 
Tanner,  —  Ky.  — ;  39  S.  W.  422; 
Howat  V.  Howat's  Ex'r,  —  Ky. 
— ;  41  S.  W.  771 ;  Hudson  v.  Adams, 


—  Ky.  — ;  49  S.  W.  192;  Johnson  v. 
Johnson,  —  Ky.  — ;  46  S.  W.  456 ; 
Hiss  V.  Wick,  78  Md.  439 ;  Campbell 
V.  McGuiggan  (N.  J.  Prer.),  34 
Atl.  383;  Hurley  y.  O'Brien,  — 
Greg.  — :  54  Pac.  947 ;  McMaster  v. 
Scriven,  85  Wis.  162:  Spehn  v. 
Huebschen,  83  Wis.  313;  West  v. 
West,  144  Mo.  119;  46  S.  W.  139. 

285  Rivard  v.  Rivard,  109  Mich. 
98. 

284  Wilcoxon  V.  Wilcoxon,  165  111. 
454;  Farnum  v.  Boyd,  56  N.  J.  Eq. 
766. 

286McFadin  \.  Catron,  138  Mo. 
197;  In  re  Cline,  24  Ore.  175. 

286  O'Connor  v.  Madison.  98  Mich. 
183;  Von  de  Veld  v.  Judj^  143  Mo. 
348. 


LAW     OF     WILLS. 


399 


of  incapacity  was  that  testator  was  becoming  forgetful,  inco- 
herent and  garrulous.^*^ 

Where  the  evidence  is  totally  wanting  on  a  necessary  point 
the  court  may  sustain  a  demurrer  to  the  evidence,^^^  or  may 
direct  a  verdict  on  the  issue  upon  which  there  is  a  total  failure 
of  proof,^^^  even  in  jurisdictions  where  the  intervention  of  a 
jury  is  necessary. 

Where  there  are  two  issues,  such  as  incapacity  and  undue^ 
influence,  a  verdict  for  contestants  on  both  issues  will  not  be 
set    aside    because  of    a  total  failure  of  proof  on  one  issue 
only.290 

As  the  credibility  of  the  witnesses  is  peculiarly  a  question 
for  the  jury,  a  verdict  of  the  jury  on  the  finding  of  the  trial 
court  where  the  case  is  tried  to  the  court,  is  not  necessarily 
contrary  to  the  weight  of  the  evidence,  where  tlie  testimony  of 
a  trustee  of  a  secret  trust  was  not  believed,  though  uncontra- 
dicted, the  evidence  disclosing  a  very  strong  bias  on  his 
part.2^1 


§335.     Form  of  verdict  and  judgment. 

The  form  of  the  judgment  in  contest  proceedings  is  largely 
detennined  by  local  statutes  and  procedure.  The  issue  usually 
is  merely  the  validity  of  the  will  in  dispute,  and  therefore  in  a 
suit  to  contest  a  will  as  a  forgery,  where  the  evidence  disclosed 
that  a  lost  will  was  the  last  will  and  testament  of  testator, 
under  which  lost  will  contestants  were  beneficiaries,  the  court 
should  merely  pass  on  the  validity  of  the  alleged  forgery,  and 
not  establish  the  lost  will.^^^ 

Where  the  finding  in  the  contest  is  that  the  purported  will 
is  not  the  last  will  of  testator,  the  decree  may  revoke  probate 
and  all  proceedings  thereunder.^^^ 


287  Wood  V.  Lane,  102  Ga.  199; 
Holmberg  v.  Phillips,  —  To.  — ; 
78  N.  W.  66;  Riley  v.  Sherwood, 
144  Mo.  354. 

28S  Von  de  Veld  v.  Judy,  143  Mo. 
348. 

289  Ellis  V.  Ellis,  —  Ky.  — ;  46 
S.  W.  521  ;  West  v.  West.  144  Mo. 
119;    46  S.  W.  139.     See  Sec.  333. 


290Fenton's  Will,  97  lo.  192;   66 
N.  W.   99. 

291  Trustees  of  Amherst  Colleije  v. 
Eitch,  151  N.  Y.  282. 

292  McDonald    v.    McDonald,    142 
Ind.  55. 

293  Sinnet    v.    Bowman,    151    111. 
146. 


400  I.AW     OF     WILLS. 

In  Missouri  the  verdict  of  the  jury  is  final,  and  it  is  not 
necessary  to  -enter  judgment,  thereon.-^'*  In  some  states  the 
jury  is  required  to  bring  in  a  general  verdict  for  or  against  the 
will.^^^     In  other  states  the  verdict  must  be  a  special  one.-^^ 

In  any  case  the  findings  upon  which  the  judgment  is  based 
must  be  consistent.  It  is,  therefore,  error  to  enter  judgment 
on  a  finding  that  testator  was  competent,  that  he  made  his  will 
under  the  influence  of  an  insane  delusion,  and  that  he  made 
it  under  undue  influence.^^^  But  it  is  not  ordinarily  held 
necessary  that  the  order  of  probate  should  make  a  separate 
finding  as  to  each  fact  necessary  to  establish  the  validity  of 
the  will.-^« 

Thus,  an  order  which  shows  that  the  witnesses  were  exam- 
ined, and  that  thereupon  the  will  was  ordered  filed  and  ad- 
mitted to  probate,  is  sufficient  without  a  special  finding  of  due 
execution.^^^ 

Where,  on  formal  and  regular  hearing,  the  probate  court 
orders  the  will  admitted  to  probate  and  record,  such  will  is 
considered  as  recorded,  even  though  the  actual  writing  out  of 
the  record  has  not  yet  been  done.^^*^ 

In  some  states  the  fonnal  order  of  probate  is  not  necessary 
to  make  a  record  which  establishes  the  validity  of  the  will. 
Where  the  law  authorizes  record  only  after  the  court  has  or- 
dered the  will  admitted  to  probate,  a  record  which  shows  that 
the  will  is  exhibited,  filed  and  recorded,  establishes  presimip- 
tively  at  least  that  the  will  was  properly  recorded  in  compli- 
ance with  an  order  admitting  it  to  probate.^^^  And  where  the 
court  of  probate  jurisdiction  allows  the  executor  to  act  as  such, 
it  may  be  presumed  that  the  court  first  secured  proof  of  such 
will  and  ordered  its  admission  to  probate.^"^ 

294  Gordon  V.  Burris,  141  Mo.  602.  soo  McClaskey   v.    Barr,    54    Fed. 

295  See  Sec.  324.  781,    affirming    47    Fed.    154. 

29fi  In  re  Langan,  74  Cal.  353.  3oi  Keister    v.    Keister,     178     111. 

297Gwin    V.    Gwin,    —    Ida.    — ;  103;    Lawrence  v.  Oglesby,   178   111. 

48  Pac.  295.  123;    Rothwell   v.   Jamison,  —  Mo. 

298  Baker    v.    Cravens,    150    Ind.  — ;  49  S.  W.  .503. 

199;    Evansville,    etc.     Company    v.  302  Witt  v.  Cutter.  38  Mich.  189; 

Winsor,  148  Ind.  682.  Holliday  v.  Ward,  19  Pa.   St.  405; 

299  Ilolman  v.  Puddle.  8  0.  S.  384.       Counts  v.  Wilson,  45  S.  Car.  571. 


LAW     OF  'WILLS.  401 

Clerical  irregularities  in  making  out  the  order  of  probate 
or  in  recording  the  will  do  not  invalidate  the  proceedings  if 
otherwise  regular. 

So,  where  the  will  of  Martha  V.  Baker  was  offered  for 
probate,  which  fact  clearly  appeared  from  the  record,  the  va- 
lidity of  the  probate  was  not  defeated  by  the  fact  that  the  entry 
of  probate  recited  that  the  will  of  "Mary  Baker"  was  filed.^*'^ 
And  where  the  will  was  executed  in  due  form  and  presented 
for  probate  and  admitted  to  probate,  the  fact  that  the  clerk 
copied  it  erroneously  was  not  allowed  to  defeat  the  rights  of 
the  parties  claiming  thereunder.^"'*  And  a  statute  requiring 
orders  to  be  entered  at  length  and  signed  was  held  to  be  direc- 
tory only.^°^  A  statute  that  the  evidence  of  subscribing  wit- 
nesses should  be  reduced  to  writing  was  held  to  be  directory 
only,  and  its  violation  did  not  invalidate  the  will.^°^  But 
where  the  instrument  offered  for  probate  was  not  executed 
according  to  law,  an  order  of  the  court  having  probate  powers 
that  it  be  admitted  to  record  "to  have  such  effect  as  it  may" 
is  not  an  order  admitting  it  to  probate  as  the  last  will  of  de- 
cedent.^"'^ 

§336.     Effect  and  operation  of  order  of  probate. 

An  order  of  j)robate  in  common  form  is  in  almost  every 
state  as  binding  as  a  probate  in  solemn  form  where  not  con- 
tested in  the  manner  prescribed  by  statute.  The  effect  of  such 
order  will  be  considered  with  the  effect  of  an  order  of  probate 
in  solemn  form  in  the  following  sections.  It  is  conclusive  not 
only  in  the  state  in  which  it  is  probated,  but  in  sister  states.^''^ 

§337.     Direct  attack. 

As  has  already  been  said,  the  modern  statutes  generally  pro- 
vide for  direct  attack  upon  probate  in  common  form  by  means 
of  appeal,  suit  to  contest  will  in  the  nature  of  appeal,  and  the 

303  Baker  v.  Cravens,  150  Ind.  146;  Hillyer  v.  Schenck,  15  N.  J.  Eq. 
199.  398. 

304MeNeely    v.    Pearson     (Tenn.  306  Reese   v.   Nolan,   99   Ala.   203. 

Ch.  App.)  42  S.  W.  165.  sot  Chase  v.  Stockett,  72  Md.  235. 

305McCrea  v.  Haraszthy,  51   Cal.  sos  Martin  v.   Stovall    (Tenn.)    52 

'  S.   W.   206. 


402  LAW     or     WILLS. 

like.  Such  direct  attack  is  provided  for  by  statute  or  by  set- 
tled rules  of  law  and  equity.  It  is  not  only  permitted  but  is 
actually  provided  for  by  law,  and  its  validity  is  beyond  all 
question.^"^ 

In  Louisiana  a  will  may  be  attacked  on  the  final  "homologa- 
tion" of  executor's  accounts  if  all  the  parties  interested  are 
before  the  court.  As  this  is  said  to  be  a  species  of  direct  at- 
tack, it  is  not  regarded  by  the  court  as  an  exception  to  the  rule 
forbidding  collateral   attack.^ ^° 

In  other  states  one  interested  adversely  to  the  will  who  is  not 
notified  of  the  pendency  of  proceedings  to  admit  such  will  to 
probate,  may  move  to  have  the  order  admitting  such  will  to 
probate  vacated ;  and  upon  such  hearing  no  presumption  exists 
as  to  'the  validity  of  the  original  probate,  and  the  will  is  prac- 
tically offered  for  probate  de  novo.^^^ 

But  these  states  all  treat  such  an  application  as  a  direct 
attack  upon  the  order  of  probate,  and  not  a  collateral  attack. 
In  allowing  such  application  they  do  not,  in  form,  at  least, 
recognize  collateral  attack.^^^  But  where  an  application  by 
one  not  properly  notified  of  the  pendency  of  the  original  pro- 
ceedings to  probate  the  will,  to  vacate  the  order  of  probate,  is 
held  to  be  a  collateral  attack  upon  such  order,  it  is  not  al- 
lowed.^ ^^ 

300  See  Sec.  323;  Herring  v.  Rick-  settled  that  any  distributee  of  th6 

etts,  101  Ala.  (93),  340;  13  So.  502;  estate   of    the    testator,    entitled    to 

Justus's     Succession,   45    La.   Ann.  notice  of  the  probate  of  the  will,  and 

190.  not  having  received  such  notice  pri- 

310  Shaffer's  Succession,  50  La.  or  to  the  probate,  may  make  an 
Ann.  601 ;  Fuentes  v.  Gaines,  25  La.  application  to  the  court  in  which 
Ann.  85.  the  will  was  probated  to  vacate  and 

311  Herring  v.  Ricketts,  101  Ala.  revoke  the  probate,  and  that  the 
340 ;  Knox  v.  Paull,  95  Ala.  505 ;  same  should  be  granted  if  it  appear 
Dickey  v.  Vann,  81  Ala.  425;  Hall  that  the  applicant  was  entitled  to 
V.  Hall,  47  Ala.  290;  Randolph  v.  notice  and  none  was  given." 
Hughes,  89  N.  Car.  428 ;  Feuchter  Kirby  v.  Kirby,  40  Ala.  492,  quot- 
V.  Keyl,  48  O.  S.  357;  Hotehkiss  ed  in  Herring  v.  Ricketts,  101  Ala. 
v.  Ladd,  62  Vt.  209:  Heminway  v.  (1893)  340;  13  So.  502,  citing  Dick- 
Roberts,   98   Wis.   501.  ey   v.   Vann,   81    Ala.   425;    Hall   v. 

312  "Under  a  practice  established  Hall.  47  Ala.  290;  Lovett  v.  Chis- 
in  this  state  by  a  series  of  decisions  holm.  30  Ala.  88. 

which,    from    their     long     standing  3i3  Twombley's  Will,  120  Cal.  3.50. 

should  not  now  be  questioned,  it  is 


LAW    OF    WILLS.  ^03 

§338.     Appeal  and  error. 

Appeal,  using  the  word  as  a  name  for  a  proceeding  wKich 
takes  the  law  and  the  facts  up- together  for  review  by  the  ap- 
pellate court,  is  allowed  from  a  judgment  in  a  will  contest 
only  when  specifically  provided  for  by  statute.  Thus,  appeal 
from  a  contest  was  once  allowed  in  Ohio,^'^-*  but  by  subsequent 
change  of  statute  this  right  has  been  abolished.^^^ 

The  right  of  prosecuting  error  to  a  judgment  in  a  contest 
proceeding  is  usually  the  same  as  in  other  civil  cases,^^^  and 
exceptions  may  be  taken  on  trial.^^^ 

An  order  admitting  a  will  to  probate  is  a  final  order  in  a 
"case,"  and  may  be  reviewed  on  error  if  the  provisions  of  the 
general  statutes  on  the  subject  of  error  are  complied  with.=^^^ 

§339.     Collateral  attack. — On  whom  is  probate  binding. 

In  some  jurisdictions  an  order  of  probate,  whether  made  on 
probate  in  common  form  or  probate  in  solemn  form,  is  bind- 
ing only  upon  those  who  are  made  parties  to  the  proceeding 
or  else  are  properly  notified  of  the  pendency  of  such  proceed- 
jj^g_3i9  ]3^-,^  where  notice  is  not  given  as  required  this  can  be 
taken  advantage  of  only  by  those  who  were  entitled  to  have 
notice.  Thus  where  notice  to  heirs  residing  in  a  foreigni  coun- 
try was  not  given  to  consul  of  such  country,  as  required  by  stat- 
ute, no  advantage  of  such  omission  can  be  taken  by  the  debtors 
of  testator.^^^ 

In  other  jurisdictions  the  order  of  probate  is  binding,  not 
only  upon  those  who  are  notified  of  the  pendency  of  such  pro- 
ceedings, but  also  upon  such  as  were  entitled  to  become  parties 
to  such  proceedings  and  had  actual  knowledge  of  the  same  m 
time  to  become  parties  thereto.^^^i     j^^  o^i^er  jurisdictions  the 

siiMitcliell    V.    Hogg,    10    0.    S.  3i9Med]ock    v.    Merritt.    102    Ga. 

447  212  ;  29  S.  E.  185  :  Hightower  v.  Wil- 

3i5McMaster  v.  Keller,  1  Ohio  C.  liams,  —  Ga.  — :  30  S.  E.  862:  Lar- 

Q    47(5,  son  V.  How,  71   Minn.  250;   Holt  v. 

3i6Glancy    v.    Glancy,    17    0.    S.  Lamb,  17  0.  S.  ,374. 

134_                                                         .  320  Rice    V.    Hosking,     105    Mich. 

siTHolman  v.  Riddle,  8  0.  S.  384.  303;  63  N.  W.  311. 

sisOrmsby    v.    Webb,    134   U.    S.  .        321  Young    v.    Holloway     (1895), 

47.  Prob.  87;  11  Rep.  596. 


404 


LAW     OF     WILLS. 


order  of  probate  is  strictly  a  proceeding  i/i  rem,  and  is  binding 
upon  the  whole  world,  irrespective  of  their  knowledge  of  the 
pendency  of  proceedings.^^^ 


§340.     Collateral  attack  not  allowed. 

It  is  a  o-eneral  principle  of  law  that  collateral  attack  is  not 
permitted  to  be  made  upon  any  judg-ment  or  order  of  court  by 
anyone  who  is  bound  thereby.  The  general  rule  applies  to 
orders  and  decrees  admitting  a  will  to  probate.  I^o  person 
who  is  bound  thereby  can  afterwards  attack  such  order  collat- 
erally when  its  validity  is  involved  in  another  judicial  pro- 
ceedino-.^^^  Thus  an  order  of  probate  after  contest  can  be  set 
aside  for  fraud  only  on  direct  application  for  such  purpose 
under  the  statute.  It  can  not  be  attacked  collaterally  by  in- 
stituting new  proceedings  in  contest  ;^-^  nor  by  raising  the 
question  of  the  validity  of  the  will  in  an  action  by  the  execu- 


322  Dugan  V.  Northcutt,  7  App. 
D.  C.  351;  Crippen  v.  Dexter,  13 
Gray,  330;  Brigham  v.  Faj^er- 
weather,  140  Mass.  411;  McDaniel 
V.  McDaniel,  86  Md.  623;  McCam- 
bridge  v.  Walraven,  88  Md.  378; 
Bogardus  v.  Clark,  4  Paige,  623; 
Tompkins  v.  Tompkins,  1  Story  C. 
C.  472 ;  Woodruff  v.  Taylor,  20  Vt. 
65 ;  Wills  V.  Spraggins,  3  Grat.  555 ; 
In  re  Storey,  20  111.  App.  183. 

323  Gaines  v.  Chew,  2  How.  619; 
Armstrong  v.  Lear,  12  Wheat.  169; 
Tarvor  v.  Tarver,  9  Pet.  174;  Brod- 
erick's  Will,  21  Wall.  503:  Gaines 
V.  Fuentes  92  U.  S.  10;  Richardson 
V.  Green,  61  Fed.  423;  Boyer  v. 
Decker,  5  App.  Div.  623  (N.  Y.)  ;  40 
N.  Y.  Supp.  469;  Maund  v. 
Maund,  94  Ga.  479;  Gay  v.  San- 
ders, 101  Ga.  601;  28  S.  E.  1019; 
Calloway  v.  Cooley,  50  Kan.  743 
(judgment  as  a  validity  of  foreign 
will )  ;  Smith  v.  Holden,  58  Kan. 
535;  McDaniel  v.  McDaniel,  86  Md. 
623:  McCambridge  v.  Walraven,  88 
Md.   378:    41    Atl.   928;    Stanley   v. 


Safe  Deposit  Co.  87  Md.  4,50;  Sly 
V.  Hunt,  159  Mass.  151;  21  L.  R.  A. 
680  ;  38  Am.  St.  Rep.  403  ;  Holman  v. 
Perry,  4  Met.  ( Mass. )  492  ;  Wilkins 
V.  Hukill,  115  Mich.  594;  73  N.  W. 
898;  Varner  v.  Johnston,  112  N. 
Car.  570;  17  S.  E.  483:  McClure  v. 
Spivey,  123  N.  Car.  678:  Bolton 
V.  Schriever,  135  N.  Y.  65:  Le 
Grange  v.  Ward,  11  Ohio,  257; 
Brown  v.  Bnrdick,  25  O.  S.  260; 
Mosier  v.  Harmon,  29  O.  S.  220; 
Davis  V.  Kirksey,  14  Tex.  Cir.  App. 
380;  McSpadden  v.  Farmer  (Tex. 
Civ.  Apn.),  23  S.  W.  814:  Halbert  v. 
De  Bode  (Tex.  Cir.  App.),  28  S. 
W.  58;  Dicke  v.  Wagner,  95  Wis. 
260;  Carey's  Estate,  49  Vt.  236; 
Morton  v.  Onion,  45  Vt.  145. 

But  see  In  re  Craft's  Estate,  164 
Pa.  St.  520;  Appeal  of  Martin,  30 
Atl.  493:  Hegarty's  Appeal,  75  Pa. 
St.  503;  Robeno  v.  Marlatt,  136  Pa. 
St.  35;  20  Atl.  512. 

324  McCambridge  v.  Walraven,  88 
Md.  378 ;  41  Atl.  928. 


LAW     OF     WILLS.  ^^^ 


tor  to  sell  testator's  real  estate  to  pay  his  debte;^^^  nor  m  an 
action  to  recover  property  in  which  the  will  is  offered  m  evi- 
dence to  show  title.=^26    This  is  true  even  if  contest  proceedings 

are  pending.^'^^ 

But  in  some  states  the  probate  of  a  will  devising  real  prop- 
erty is  oiily  prinm  facie  evidence  of  its  validity,  and  is  there-  ^ 
fore  liable  to  collateral  attack  in  any  suit  in  which  such  will  ' 
may  be  offered  in  evidence.^^^s  where  probate  is  only  prima 
facie  evidence  of  the  validity  of  the  will,  it  may  be  attacked 
collaterally  in  a  suit  in  equity  to  set  aside  a  decree  of  foreclos- 
ure rendered  in  a  suit  against  the  executor  under  the  will,  by 
showing  that  the  will  was  not  made  in  contemplation  of  mar- 
riage, and  was  therefore  revoked  by  testator's  subsequent  mar- 
riage and  the  birth  of  a  posthumous  child,  and  that  therefore 
the  executor  acting  as  such  was  not  the  lawful  executor.^ ^9 
And  where  such  probate  is  prima  facie  evidence  of  the  validity 
of  the  will,  it  is  error  to  charge  that  it  is  of  no  effect  what- 


gygj.   330 


§341.     What  questions  are  determined  by  probate. 

An  order  admitting  a  will  to  probate,  if  made  by  a  court  of 
competent  jurisdiction,  is  conclusive  upon  all  who,  under  the 
local  rules  of  procedure,  are  bound  thereby,  as  to  every  fact 
necessary  to  be  established  in  order  to  authorize  the  admission 
of  the  will  to  probate,  except  in  some  states  as  to  certain  facts 
which  are  jurisdictional  in  their  nature  and  which  the  court 
can  not  adjudicate.     Thus  a  finding  by  a  court  of  competent 

325Maimd  v.  Maund,  94  Ga.  479.  (probate's)  effect  as  prima  facie  ev- 

320Varner    v.    Johnston,    112    N.  idence   of   the   validity   of   the   will 
Car.  .570;  17  S.  E.  483:  Warfield  v.  as   to   real   property,   may   be   over- 
Fox,  53  Pa.  St.  382 ;  Wilson  v.  Gas-  come    by    other    evidence    showing 
ton,' "92    Pa.    St.    207:    Cochran    v.  the  will  to  be  invalid." 
Young,  104  Pa.  St.  333.  Belton    v.    Summer,    31    Fla.    139, 

327  Brown    v.    Burdick,    25    O.    S.  citing  Troy  v.   Evans,   97   U.   S.   1; 

ogQ  Kelly    v.   Jackson,    6    Pet.    (U.    S.) 

32S  Barbour  v.  Moore,   4  App.  D.  622. 
C.  535 ;   Belton  v.  Summer,  31   Fla.  329  Belton    v.    Summer,    31     Fla. 

139;    Corley    v.    McElmeel,    149    N.  139. 
Y   998  330  Barbour  v.  Moore,  4  App.  D.  C. 

"In    a    collateral    proceeding    its       535. 


406  LAW     OF    WILLS. 

jurisdiction  that  a  certain  instrument  is  "the  last  will  and  tes- 
tament of  deceased"  is  conclusive  as  to  the  mental  capacity  of 
testator  at  the  time  he  made  such  will  with  reference  to  his 
testamentary  capacity  and  as  far  as  such  will  is  concerned.^^^ 

But  it  is  held  in  Kentucky  that  probate  is  not  conclusive 
as  to  the  power  of  a  testatrix  to  dispose  of  her  estate  by  will.^^- 

Probate  also  establishes  the  absence  of  such  undue  influence 
as  in  law  vitiates  a  will,  as  far  as  the  will  in  question  is  con- 
cerned."^^ It  also  establishes  the  fact  that  the  will  probated 
was  not  fraudulently  substituted  for  the  genuine  will."^^  An 
order  of  probate  made  by  a  court  of  competent  jurisdiction 
is  conclusive  as  to  the  form  and  regularity  of  the  proceedings 
in  probate,^^^  and  can  not  be  attacked  collaterally  by  showing 
that  the  will  was  admitted  to  probate  upon  the  evidence  of 
only  one  subscribing  witness.  ^^^ 

Unless  the  statute  specially  requires  it,  the  record  of  probata 
does  not  have  to  show  a  finding  as  to  each  element  of  proof. 
Thus  where  the  record  discloses  that  only  one  witness  testified 
the  probate  was  nevertheless  valid.^^'''  It  is  said  that  an  order 
of  probate  is  conclusive  as  to  the  legality  of  the  form  of  the 
will.^^'^  Where  one  of  the  subscribing  witnesses  was  incom- 
petent, but  this  fact  did  not  appear  on  the  face  of  the  will,  an 
order  admitting  such  will  to  probate  was  not  a  nullity  and  could 
not  be  attacked  collaterally.^^''  An  order  dismissing  an  appeal 
because  of  defect  of  parties  is  no  bar  to  an  appeal  to  which  all 


331  Smith  V.  Holden,  .58  Kan.  535;  v.  Maund,  94  Ga.  479;  McClure  v. 
Sly  V.  Hunt,  159  Mass.  151;  21  L.  Spivey,  123  N.  Car.  678;  31  S.  E. 
E.   A.    680;    38   Am.   St.   Rep.   403;  857. 

Varner   v.   Johnston,    112    N.    Car.  336  McClure  v.  Spivey,  123  X.  Car. 

.570;  17  S.  E.  483.  678:    31   S.  E.  857:   Mosier  v.  Har- 

332  Gregory  v.  Gates,  92  Ky.  532 ;  mon,  29  O.  S.  220. 

13  Ky.  L.  Rep.  761:   18  S.  W.  231;  337  Baker    v.    Cravens,     150     Ind. 

Craine  v.  Edwards,  13  Ky.  L.  Rep.  199. 

499:     17     S.      W.     211;      92      Ken.  33s  Tygart  V.  Peeples,  9  Rich.  Eq. 

109.  46:  Craig  v.  Beatty,  11  S.  Car.  375; 

333Wilkins   v.   Hukill,    115   Mich.  Blount  v.  Walker.   28   S.   Car.   545, 

594;  73  N.  W.  898.  Burkett  v.  Whittemore,   36   S.   Car. 

334  Harp  V.  Parr,  168  111.  459.  428. 

335  Stanley  v.  Safe  Deposit  and  33n  Chicago  Title  and  Trust  Co.  v. 
Trust  Company,  88  Md.  401 :  Maund  Brown,  183  111.  42. 


LAW    OF    WILLS.  ^^' 


interested  are  made  parties,=^^^  nor  does  a  decree  entered  by 
consent  dismissing  an  appeal  bar  others  who  were  not  parties 

to  such  appeal.^^^ 

A  probate  court  has  as  a  rule  jurisdiction  to  admit  to  pro- 
bate only  the  wills  and  testaments  of  persons  domiciled  within 
their  territorial  jurisdictions  or  owning  property  therein.     An 
interesting  question  is  presented  when  it  is  sought  to  attack  the 
validity  of  the  order  of  probate  by  showing  that  testator  was 
not  domiciled  within  the  jurisdiction  of  such  probate  court  at 
the  time  of  his  death,  and  that  the  order  admitting  the  will  to 
probate  is  therefore  a  nullity.     It  is  generally  held  that  though 
such  fact  is  jurisdictional  the  court  has  nevertheless  upon  such 
point  jurisdiction  to  hear  and  determine  the  fact;  and  where 
the  court  passes  upon  such  fact,  either   directly  or   inferen- 
tially,  no  collateral  attack  can  be  made  upon  the  order  of  pro- 
bate by  showing  that  testator  did  not,  in  fact,  have  his  domi- 
cile within  the  jurisdiction  of  said  court.^^^  Hence,  where  a 
will  has  been  admitted  to  probate  in  a  county  of  which  testa- 
tor was  not  a  resident  at  his  death,  upon  false  testimony,  this 
order  can  not  be  attacked  collaterally  by  a  proceeding  to  pro- 
bate the  will  de  novo  in  the  proper  county.^^^ 

An  order  of  probate  obtained  in  another  jurisdiction  after 
the  will  has  been  probated  and  contest  proceedings  instituted 
in  the  first  jurisdiction,  is  not  such  an  adjudication  of  testa- 
tor's domicile  in  the  second  jurisdiction  that  it  can  not  be 
attacked  in  the  original  suit.  Indeed,  it  is  not  even  evidence 
of  testator's  domicile  in  the  second  jurisdiction.=^^^  The  pro- 
bate court  has  also  authority  to  pass  on  the  validity  of  the  notice 
o-iven.  No  collateral  attack  can  be  made  on  this  ground.^^s 
340  Miller's    Estate,    159    Pa.    St.       Bolton  v.   Schriever,   135  N.  Y.  65: 


562 


18  L.  R.  A.  242 ;   Fisher  v.  Bassett, 

34iLischy  V.   Schrader    (Ky.),  47  9  Leigh   (Va.)   119. 

S.  W.  611-!  20  Ky.  L.  R.  843.  Contra    in    Kentucky,    Miller    v. 

342  Hahn   v.   Kelly,    34   Cal.    391 ;  Swan,  91     Ky.  36. 

Wight    V.    Wallbaum,    39    111.    554;  343  Cunningham  v.  Tuley,  154  Ind- 

Dequindre  v.  Williams,  31  Ind.  444;  270,  56  N.  E.    27. 

Stewart  v.  Row,   10  La.  Rep.   530;  344  Overby  v.  Gordon,  13  App.  D. 

McDaniel  V.  McDaniel,  86  Md.  623 ;  C.  392. 

Johnson    V.    Beazley.    65    Mo.    250;  ■        345  Stanley  v.  Safe  Deposit  Co.,  8 / 

Obert  V.  Hammel.  "18  N.  J.  L.  73;  Md.  450;  88  Md.  401. 


408  LAW     OF     WILLS. 

A  court  of  probate  in  admitting  a  will  to  probate  does  not 
in  most  states  have  any  jurisdiction  to  construe  the  will  so 
as  to  conclude  the  parties  to  such  proceeding.  Its  action  does 
not  conclude  the  parties  as  to  any  facts  except  that  the  testa- 
tor possessed  the  requisite  capacity,  was  not  under  undue  in- 
fluence and  made  the  will  in  the  manner  required  by  statute.^'' ^ 
In  accordance  with  this  principle  a  court  can  not  exclude 
from  probate  an  instrument  executed  in  due  form  by  a  com- 
j)etent  testator  who  was  not  under  restraint,  on  the  sole  ground 
that  the  instrument  itself  was  not  testamentary  in  its  charac- 
^gp_347  When  a  court  of  probate  powers  admits  a  will  to  pro- 
bate, this  action  of  the  court  is  conclusive  as  to  the  form  of 
the  will,  but  is  not  conclusive  upon  the  parties  as  to  its  con- 
struction, its  legal  effect,  or  its  validity,  except  so  far  as  the 
form  of  the  instrument,  testator's  capacity  and  freedom  from 
restraint,  and  the  fact  that  the  will  was  not  revoked  are  con- 
cerned.^'*^ Thus  the  order  of  the  probate  court  in  admitting 
a  will  to  probate  and  allowing  the  residuary  legatee  to  give 
bond  did  not  conclusively  establish  the  validity  of  such  resid- 
uary bequests,  nor  did  it  work  a  transfer  of  the  estate  to  such 
residuary  legatee.^'*'^  Nor  does  the  admission  of  a  will  to  pro- 
bate preclude  inquiry  as  to  whether  such  will  was  a  valid  exe- 
cution of  a  power  f^^  nor  does  the  probate  of  a  will  devising 
real  estate  determine  the  capacity  of  the  devisee  to  take  there- 


346  Vestry  of  St.  John's  Parish  v.  is  obvious  that  the  statute  supra 
Bostwick,  8  App.  D.  C.  452;  Mer-  and  the  authorities  preclude  such 
riam's  Estate,  136  N.  Y.  58;  Heg-  view  of  the  subject."  Barney  v. 
arty's  Appeal,  75  Pa.  St.  503;  Bur-  Hayes,  11  Mont,  99,  citing  Cobb's 
kett  V.  Whittemore,  36  S.  Car.  428;  Estate,  49  Cal,  599;  Sanderson's 
Jones  V.  Roberts    (Jones's  Estate),  Estate,  74  Cal.  199. 

84  Wis.  465;  54  N.  W.  917.  348  Merriam's    Estate,    136   N.    Y. 

347  Barney  v.  Hays,  11  Mont.  99.  58;  Burkett  v.  Whittemore,  36  S. 
"The  respondent  claims  that  these  Car.  428;  Jones  v.  Roberts,  84  Wis. 
instruments  when  examined  and  465 ;  Jones  v.  Roberts,  54  N.  W. 
construed  are  not  of  a  testamentary  917. 

character ;    that    the    issues    which  349  Jones  v.  Roberts    ( Jones's  Es- 

have  been  commented  on  are  irrele-  tate),  84  Wis.  465,   54  N.  W.  917. 

vant  and  immaterial   and  therefore  350  Burkett  v.   Whittemore,   36   S. 

there  was  no  error  in  denying  the  Car.  428. 
probate  of  said  will  and  codicil.     It 


LAW    OF    WILLS. 


409 


under.  Hence  a  devise  to  the  United  States  was  not,  after 
admission  to  probate,  liable  to  direct  attack  by  the  heirs  on  the 
sole  ground  that  the  United  States  was  not  authorized  to  take 
such  devise,  as  the  decree  of  probate  was  not  an  adjudication 
of  such  fact.^^^  So  where  a  will  written  in  one  language  is 
probated  as  translated,  the  court  is  not  bound  by  the  transla- 
tion, if  inaccurate,  but  may  look  to  the  original.^^^  But  in 
some  states  the  probate  court  is  given  jurisdiction  to  construe 
the  will  and  to  decide  what  interest  is  passed  thereby;  and 
such  finding  is  conculsive  if  not  appealed  from.^^^ 

Where  the  order  of  probate  is  not  a  nullity,  the  acts  of  the 
executor  before  the  will  is  set  aside  are  valid  and  are  not 
subject  to  attack  even  if  the  will  is  set  aside  afterward  on  a 
direct  proceeding.^^^  Where  the  court  had  no  jurisdiction  to 
make  the  order  admitting  the  will  to  probate,  such  order  is  a 
nullity  and  may  be  attacked  collaterally  wherever  relied  on. 

What  facts  prevent  the  jurisdiction  of  the  court  from  at- 
taching is  often  a  question  of  great  difficulty.  Where  the  rec- 
ord of  probate  shows  affirmatively  that  the  alleged  will  was  not 
executed  in  accordance  with  law,  it  is  held  in  some  jurisdic- 
tions that  the  court  had  no  jurisdiction  to  admit  such  instru- 
ment to  probate  as  a  will,  and  the  order  of  probate  is  there- 
fore a  nullity  and  may  be  attacked  coUaterally.^^^     But  the 


351  Merriam's  Estate,  136  N.  Y.  "A  judgment  of  the  court  of  or- 
58.  dinary  ordering  the  probate  of  such 

352  Cliff's  Trusts  (1892),  2  Ch.  a  paper  attested  by  one  witness 
229 ;  Williamson's  Will,  6  Ohio  N.  only,  gives  the  paper  no  effect  as  a 
P.  79.  A  different  view  was  taken  will  in  any  proceeding  in  which 
in  Caulfield  v.  Sullivan,  85  N.  Y.  its  validity  may  be  called  into  ques- 
153,  where  it  was  held  that  the  tion.  The  court  of  ordinary  is 
translation  was  proof  against  col-  without  jurisdiction  to  render  such 
lateral  attack.  judgment,   which   is   therefore  void. 

353  Brown  v.  Stark,  47  Mo.  App.  The  will  .  .  .  had  been  proved  and 
370 ;  Ward  v.  Congregational  admitted  to  record  ;  and  yet  it  had 
Church,  66  Vt.  490;  29  Atl.  770.  no  attesting  witnesses,    as    appears 

354  Smith  V.  Smith,  168  111.  488;  from  the  probate  itself.  .  .  It  is 
Jones  V.  Jones,  14  B.  Mon.  464;  conceded  that  it  had  no  subscribing 
Woods  V.  Nelson,  9  B.  Mon.  600.     '  witnesses.     The  will   was   therefore 

355  Hooks  V.  Stamper,  18  Ga.  471 ;  utterly  void  and  of  no  effect.  It 
Gay  V.  Sanders,  101  Ga.  601 ;  Wall  was  competent,  therefore,  to  move 
V.  Wall,  123  Pa.  St.  545;  Bowlby  at  any  time,  to  set  aside  the  judg- 
V.    Thunder,    105    Pa.    St.    173.  ment    of    the    ordinary    admitting 


410  LAW    OF    WILLS. 

appearance  and  consent  of  adult  heirs  at  the  probate  of  such  a 
will,  will  bind  them  where  the  estate  is  afterwards  distributed, 
though  such  probate  is  of  no  effect  as  to  minors.^^^ 

As  a  court  of  probate  has,  as  a  rule,  jurisdiction  to  admit  to 
probate  only  wills  of  deceased  testators,  an  order  admitting  to 
^probate  a  will  of  a  living  man  is  held  to  be  without  the  juris- 
diction of  the  court,  and  may  be  attacked  collaterally.  The 
text-book  Avriters  have  discussed  the  question  of  the  effect  of  the 
probate  of  the  will  of  one  who  is  thought  to  be  dead  but  who 
subsequently  proves  to  be  alive  at  the  time.  The  unanimous 
opinion  of  the  writers  upon  this  subject  is  that  the  court  of  pro- 
bate powers  has  no  jurisdiction  to  admit  -to  probate  the  will  of 
one  who  is  alive,  and  that  the  order  admitting  the  will  to  pro- 
bate may  be  attacked  collaterally  Avhenever  the  validity  of  the 
will  is  presented  for  adjudication.  This  question  does  not  seem 
to  have  been  presented  to  the  courts  for  adjudication,  and  the 
authorities  cited  in  support  of  the  proposition  are  all  of  them 
cases  where  no  will  was  left  by  the  person  alleged  to  have  de- 
ceased ;  and  his  estate  was  settled  on  the  theory  that  he  died  in- 
testate. In  such  a  case  the  authorities  are  almost  unanimous 
to  the  effect  that  the  court  had  no  jurisdiction  to  make  an  order 
appointing  an  administrator,  or  to  order  any  sale  of  the  prop- 
erty of  the  alleged  decedent;  and  that  such  orders  may  be  at- 
tacked collaterally  by  the  alleged  decedent  in  an  action  to  re- 
cover his  property.^^^ 

this    paper    to   probate.      It   was    a  ssc  Gay  v.   Sanders,  101  Ga.  601 . 

nullity  on   its   face;     and   in   favor  357  "The    general    question    as    to 

of  such  a  judgment  nothing  can  be  whether  any  court  has  or  can  have 

presumed."     Hooker  v.  Stamper,  18  jurisdiction  to  grant  letters  of  ad- 

Ga.  471.  ministration  on  the  estate  of  a  liv- 

" 'A  will  attested  by  only  two  wit-  ing  person   has  been  much  discussed, 

nesses   is   void,    and   can   derive   no  and   while   the   authorities   are   not 

aid  from  probate  and  being  admit-  entirely   harmonious,   yet  the  great 

ted  to  record.    The  judgment  of  pro-  weight  thereof  is  clearly  against  the 

bate   is   not   merely   erroneous,   but  existence   of   any   such   jurisdiction. 

a   nullity   on   its   face.     Xo   motion  The  ground  upon  which  most  of  the 

to   set   it  aside  is   requisite,   nor   is  decisions   rest   is    that   in   order    to 

it    ever    too    late    to    urge    its    in-  confer  jurisdiction  upon  a  court  to 

validity.'      Cureton    v.     Taylor,     89  grant  letters  of  administration  upon 

Ga.  490."     Gay  v.  Sanders,  101  Ga.  a  person's  estate,  that  person  must 

601.  in  fact  be  dead." 


LAW    OF    "WILLS. 


411 


Carr  v.  Brown,  20  R.  I.  215,  cit- 
ing Griffith  V.  Frazier,  8  Cranch, 
■9;  Scott  V.  McNeal,  154  U.  S.  34; 
Duncan  v.  Stewart,"  25  Ala.  408 ; 
Stevenson  v.  Superior  Court,  62  Cal. 
60 ;  French  v.  Frazier,  7  J.  J.  Marsh. 
(Ky.)  425;  Thomas  v.  The  People, 
107  111.  517;  Johnson  v.  Beazley, 
65  Mo.  250;  Jochumsen  v.  Bank, 
3  Allen  (Mass.)  87  ;  Waters  v.  Stick- 
ney,  12  Allen  (Mass.)  1;  Day  v. 
Floyd,  130  Mass.  488;  Morgan  v. 
Dodge,  44  N.  H.  255 ;  State  v.  White, 
7  Ired.  (N.  Car.)  116;  Devlin  v. 
Commonwealth,  101  Pa.  St.  273; 
D'Arusment  v.  Jones,  72  Tenn.  251 ; 
Withers  v.  Patterson,  27  Tex.  491; 
Melia  v.  Simmons,  45  Wis.  334, 
and  the  notes  to  Bolton  v.  Schriever, 
18  L.  R.  A.  242,  135  N.  Y.  65. 

Of  these  cases,  Johnson  v.  Beaz- 
ley, Waters  v.  Stickney,  Day  v. 
Floyd,  Morgan  v.  Dodge  and  With- 
ers V.  Patterson,  contain  merely  ob- 
iter dicta  on  this  point.  The  other 
cases  cited  are  express  adjudications 
upon  the  point.  To  the  same  effect 
are  Burns  v.  Van  Loam,  29  La.  Ann. 
560;  Andrews  v.  Avory,  14  Gratt. 
(Va.)  229. 

This  case  overrules  Southwick  v. 
Probate  Court,  18  R.  I.  402,  28  Atl. 
334,  insofar  as  that  case  recog- 
nizes the  validity  of  the  statute 
authorizing  probate  of  the  will  and 
settlement  of  the  will  of  one  who 
has  been  absent  and  unheard  of 
for  seven  years.  This  last  case, 
however,  presented  for  direct  adju- 
dication only  the  question  of  the 
form  and  sufficiency  of  the  notice  of 
such  hearing,  and  the  validity  of  the 
statute  was  tacitly  assumed  by  both 
parties  and  the  court.  To  the  same 
eflfect  is  Smith  v.  Combs,  49  N.  J. 
Eq.  420. 

The  only  cases  opposed  to  this 
weight  of  authority  are  Roderigas. 
V.  East  End  Savings  Institution,  63 
N.  Y.  460;  76  N.  Y.  316;  Plume  v. 
Howard  Savings  Institution,  40  N. 


J.  L.  211.  In  Roderigas  v.  East 
End  Savings  Institution,  63  N.  Y. 
460,  an  administrator  was  appoint- 
ed for  the  estate  of  a  person  absent 
in  Cuba.  This  administrator  drew 
the  money  of  his  alleged  decedent 
out  of  the  bank.  On  the  return  of 
the  person  who  was  alleged  to  have 
died,  such  person  sued  to  recover 
this  money  from  the  bank.  It  was 
held  that  he  could  not  attack  the 
order  finding  that  he  was  dead.  This 
decision  was  rendered  by  four 
jiidges,  three  dissenting.  Subse- 
quently, in  76  N.  Y.  316,  when  this 
case  came  before  the  Court  of  Ap- 
peals for  the  second  time,  the  rec- 
ord disclosed  that  the  petition  for 
the  appointment  of  an  administra- 
tor only  alleged  the  death  of  al- 
leged decedent  "upon  the  best  of 
the  knowledge,  information  and  be- 
lief" of  the  i^etitioner.  It  was  held 
that  as  no  proof  was  offered  of  death 
of  alleged  decedent,  and ,  the  pe- 
tition did  not  allege  such  death 
positively,  the  court  never  acquired 
jurisdiction  over  his  estate,  and  its 
orders  were  nullities  subject  to  col- 
lateral attack.  This  case,  in  63  N. 
Y.  460,  has  been  approved  only  in 
two  later  cases.  In  a  New  Jersey 
case,  Plume  v.  Savings  Institution, 
46  N.  J.  L.  211,  the  authority  of  an 
administrator  was  attacked  collat- 
erally, but  only  because  the  record 
did  not  show  specifically  that  the 
intestate  was  dead.  It  was  not 
claimed  that  in  point  of  fact  he  was 
alive.  In  an  obiter  the  court  ex- 
pressed approval  of  Roderigas  v. 
East  End  Savings  Institution,  upra, 
but  this  case  can  not  be  regarded  as 
following  the  New  York  decision. 
In  Lavin  v.  Emigrant  Industrial 
Savings  Bank,  18  B'atch.  1,  the 
court  said  that  Roderigas  v.  Sav- 
ings Institution  had  no  support  else 
where  in  tlie  authorities  of  the 
Ensrlish   or   American   courts. 


412  LAW     OF    WILLS. 

In  a  recent  Ehode  Island  case^^^  a  state  statute  specifically 
gave  the  court  of  probate  jurisdiction,  the  right  to  administer 
the  estate  of  anyone  who  should  be  absent  over  seven  years  as 
if  he  were  dead.  This  statute  was  held  to  be  unconstitutional 
as  taking  private  property  without  due  process  of  law. 

A  recent  Washington  case^^^  followed  the  case  of  Roderigas 
V.  Savings  Bank,  63  N.  Y.  460,  but  was  reversed  by  United 
States  Suj)reme  Court,^^^  as  taking  property  without  due  pro^ 
cess  of  law.  Under  this  decision  the  attempt  to  administer  the 
estate  of  one  who  is  alive  raises  a  federal  question,  and  a  deci- 
sion of  a  state  supreme  court  upholding  such  administration 
will  be  reversed  by  the  United  States  Sui3reme  Court  on  error. 
In  some  courts  it  is  held  that  an  administrator  who  pays  only 
after  suit,  is  protected,  even  if  supposed  decedent  is  alive.^®^ 

§342.     Effect  of  saving  right  of  contest  to  certain  parties. 

Where  in  a  contest  proceeding  the  alleged  last  will  of  testa- 
tor is  found  invalid,  the  rule  supported  by  the  weight  of  au- 
thority is  that  it  is  not  invalid  alone  as  to  those  contesting  the 
will,  but  that  it  is  invalid  in  toto  as  to  all  parties  interested 
therein.^  ^^ 

In  California  the  general  doctrine  is  qualified  by  holding 
that  where  one  of  the  heirs  was  a  minor,  and  brought  suit  to 
contest  the  will  within  the  time  limit  after  his  disability,  was 
removed,  it  would  not  enure  to  the  benefit  of  the  other  heirs 
who  allowed  the  time  limit  after  their  disabilities  were  removed 
to  expire.^*'^ 

If  the  right  to  contest  the  will  is  saved  for  one  of  the  par- 
ties interested,  it  is  saved  for  all  f^"^  and  if  the  judgment  in 
the  contest  is  erroneous  as  to  one  it  is  erroneous  as  to  all.^^^ 

358  Carr  v.  Brown,  20  R.  I.  215.  363  Samson    v.    Samson,    64    Cal. 

359  Scott  V.  McNeal,  5  Wash.  309.  327. 

360  Scott  V.  McNeal,  154  U.  S.  34.  364  Powell    v.    Koehler,    52    O.    S. 

361  bay  V.  Floyd,  130  Mass.  488.  10.3. 

362  Clements   v.   McGinn,   —   Cal.  365  Wells  v.  Wells,   144  Mo.   198; 
— ;  33  Pac.  920:  Freud's  Estate,  73  45  S.  W..  1095. 

Cal.    555:    Bartholick's   Estate,    141 
N.  Y.   166. 


•LAW    OF    WILLS. 


413 


§343.     Effect  of  judgment  refusing  to  admit  will  to  probate. — 
Re-propounding. 

In  some  jurisdictions,  usually  under  early  systems  of  pro- 
cedure, no  means  is  given  by  appeal  or  error  of  direct  attack 
upon  a  judgment  of  the  probate  court  refusing  to  admit  a  will 
to  probate.  In  such  jurisdictions  it  is  usually  permitted  any 
party  interested  in  having  a  will  admitted  to  probate  to  re- 
propound  it  after  it  has  been  refused  admission  to  probate,  if 
he  adduces  new  evidence.^®^  In  some  jurisdictions  an  order 
refusing  to  admit  a  will  to  probate  is  not  a  final  order,  and  is 
not  appealable.^^''"  The  policy  of  modern  legislation  is  to  pro- 
vide a  means  of  finally  determining  the  validity  of  a  will  when 
offered  for  probate.  It  is  often  provided  that  an  appeal  may 
be  taken  from  an  order  of  the  court  of  probate  jurisdiction, 
refusing  to  admit  the  will  to  probate.  When  the  final  order 
is  made,  whether  in  the  probate  court  or  the  appellate  court, 
from  which  no  appeal  can  be  taken  to  a  higher  court — that  is  to 
say,  from  which  order  it  is  impossible  to  take  both  facts  and 
evidence  to  a  higher  court  for  another  trial — it  is  generally 
held  that  error  will  lie  from  such  final  order  to  the  courts  of 
last  resort,  as  in  other  cases.^^^  Where  such  means  of  direct 
attack  upon  an  order  refusing  to  admit  a  will  to  probate  is  al- 
lowed, the  rule  in  force  generally  is  that  no  person  who  was 
served  with  notice  of  the  proceedings  in  the  probate  court,  in 
time  to  appeal  therefrom,  can  re-propound  the  Avill  which  has 
been  refused  admission  to  probate.  The  methods  of  direct  at- 
tack provided  by  statute  are  exclusive  as  far  as  such  parties  are 
concerned.^^^  But  such  order  refusing  admission  of  the  will 
to  probate  is  not  binding  upon  parties  interested  in  having  the 
will  admitted  to  probate  who  were  not  notified  of  the  pend- 
ency of  proceedings  in  the  prol)ate  court.      Such  parties  not 

866  Swazey  v.   Blackman,   8   Ohio,  Contra,  Preston  v.  Trust  Co.,  94 

5  ;  Hunter's  Will.  6  Ohio,  499  ;  Chap-  Ky.  295. 

man's  Will,   6  Ohio,   148 ;   Feuchter  aes  M.    E.    Missionary    Society    v. 

V.  Keyl.  48  O.  S.  .1.57 :    Lopez's  Sue-  Ely,   .56   O.   S.   405. 

cession.   3.3  La.  Ann.   368.              -  369  M.    E.    Missionary    Society   v. 

367  Smith's    Estate,    98    Cal.    636.  Ely,   56   0.   S.   405. 


414  LAW   OF   Wills. 

being  concluded  bj  this  order  may  re-propound  the  will  for  pro- 
bate.=^^« 

In  New  York  the  statute  makes  no  provision  as  to  the  effect 
of  a  refusal  to  admit  to  probate  a  will  passing  real  estate  for 
which  probate  is  imnecessary.  Such  order  is  not  binding  upon 
devisee,  but  he  may  subsequently,  in  a  partition  suit  between 
the  heirs  to  which  he  is  made  a  party,  offer  the  will  already  re- 
fused, and  have  its  validity  tried  to  a  jury.^^^  As  the  reasons 
given  for  refusing  to  allow  a  will,  once  refused  admission  to 
probate,  to  be  re-propounded,  do  not  apply  where  a  later  will  is 
offered  for  probate,  it  is  held  that  a  will  which  has  once  been 
refused  admission  to  probate  may  be  re-propounded  with  a 
codicil  whereby  it  is  republished.^^^ 

§344.     Costs. 

In  a  few  jurisdictions  contestant  must  file  a  bond  to  secure 
costs,-^^^  but  usually  this  is  not  required."'^^  The  theory  of  costs 
in  probate  and  contest  proceedings,  entertained  by  most  courts, 
is  that  in  the  absence  of  a  statute  directing  that  costs  be  taxed 
against  the  losing  party,  as  in  an  action  at  law,  the  court  has 
the  same  discretionary  power  as  in  equity  cases  to  tax  costs  ac- 
cording to  right  and  to  the  equities  of  the  case.^^^  Courts 
which  entertain  this  view  of  their  power  over  costs  may  allow 
to  the  executor  his  costs  for  successfully  defending  the  will, 

370  Vestry  of  St.  John's  Parish  v.  partition  suit.      Putt  v.   Putt,    14f) 

Bostwick,  8  App.  D.  C.  452;  Feuch-  Ind.   30. 

ter  V.   Keyle,   48   O.   S.   357;    In  re  374  Cash  v.  Lust,   142  Mo.   630. 

Stacey's  Will,   6   Ohio  Dec.   142;   4  375  McKinney's    Estate,    112    Cal. 

Ohio  N.  P.  143.  447  (this  rule  is  enacted  into  a  stat- 

37iCorley  v.  McElmeel,  149  N.  Y.  ute  in  California)  ;   Shaw  v.  Camp, 

56   111.    App.    23,   affirmed,    163   111 

372  Barney  v.  Hays,   11  Mont.  99.  144;  Wilbur  v.  Wilbur,  138  111.  446; 

373  Harrison  v.  Stanton,  146  Ind.  Alvord  v.  Stone,  78  Me.  296;  Wall 
366;  Starkweather  v.  Bell  (S.  D.)  ace  v.  Sheldon,  56  Neb.  55;  76  N.  W 
(1899),  80  N.  W.  183:  Grover's  418;  McClary  v.  Stull,  44  Neb.  175 
Succession,  49  La.  Ann.  1050.  But  Mayo  v.  Jones,  78  jSL  Qr^y  490 
this  statute  applies  only  to  formal  Jones  v.  Roberts,  96  Wis.  427  :  71  N 
contests  and  does  not  apply  where  W.  883;  Gorkow's  Estate,  20  Wash, 
similar    questions    are    raised    in    a  563. 


228. 


415 

LAW     OF    WILLS. 


tot)e  paid  out  of  the  funds  of  the  estate  in  his  hands,^^''  while 
^f  the  exexcutor  exerted  undue  influence  over  testator,  whereby 
he  induced  him  to  make  the  will  in  litigation,  costs  may  be 
awarded  against  such  executor  upon  a  judgment  adverse  to  the 
AvilL^^"^     A  defeated  contestant,  who  has  carried  on  litigation 
in  o-ood  faitli,  and  upon  reasonable  cause  for  appeal,  may  have 
his'costs  paid  out  of  the  estate.^^«    So  where  one  who  is  named 
iu  a  will  as  executor  and  legatee  offers  a  will  for  probate  and 
fails  the  court  may  in  its  discretion  allow  him  his  costs,^^^  and 
such  allowance  is  not  made  invalid  by  the  fact  that  at  the  time 
of  such  allowance  there  was  no  administrator  of  such  estate.^^^ 
When  this  view  is  entertained,  an  administrator  with  the  will 
annexed  can  not  take  the  pauper's  oath  on  appeal,  as  the  costs 
are  payable  out  of  the  estate.^^^    In  the  absence  of  special  rea- 
sons for  making  the  costs  payable  out  of  the  estate,  the  courts, 
in  the  furtherance  of  justice,  often  compel  the  unsuccessful 
proponent  of  the  will  to  pay  the  costs  of  the  application,^^«^^ 
and  the  same  rule  will  apply  to  unsuccessful  contestants.=^8 
The  word  "costs,"  as  used  in  this  connection,  means  actual  tax- 
able costs,  and  not  expenses  other  than  taxable  costs,^«^   and 
when  contestants  have  multiplied  costs  unnecessarily  by  acting 
separatelv,  the  court  will  allow  only  necessary  costs.^^^    When 
defeated  "'contestant  has,  through  a  mistaken  view  of  the  law, 
which  proponent  shared,  resisted  probate  upon  immaterial  is- 

376  Brilliant     v.     Wayne     Circuit  447,  citing  Jackman's  Will,  26  Wis. 

Judges,    110    Mich.    68;    67    N.    W.  143;    Downie's  Will     42   Wis    66^ 
1101;  Hoppe's  Will,  102  Wis.  54.  asi  CrocKer  v.  Balch,lenn.  (1900) , 

3T7  McKinney's    Estate,    112    Cal.  55  S.  W.  307. 


44 


3S2  ]Moyer  v.  Swyart,  125  111.  262 ; 

3Ts01mstead's    Estate,     120     Cal.  Shaw  v.  Moderwell,  104  111.  64 

447  •  52  Pac.  804 ;  Cheever  v.  North,  3S3  Crawford    v.  .  Thomas     (Ivy.) 

106  Mich.  390;  Jones  v.  Roberts,  90  (1899),  54  S.  W.  197. 

Wis    427-   71  N.  W.  883;   Clapp  v.  384  Cheever   v.    North,    106   Mich 

Fuilerton,34N.Y.190;LeFevrev.  390;    Brilliant     v.     Wayne    Circuit 

Le  Fevre,  59  N.  Y.  434;  In  re  Wil-  Judges,    110    Mich.    68;    6<    N.    W . 

son,  103  N.  Y.  374    (the  rule  given  1101.                                           ^^  t     t 

in  the  text  was  questioned  in  this  as.  Browning  v.  Mostyn,  66  L.  J. 

X  p.  37.    So  when  unnecessary  amend- 

3T9  01mstead's    Estate,     120    Cal.  ments    have    been    made.      Coke  v. 


case ) . 


447. 

3S0  Olmstead's     Estate,     120     Cal. 


French,  76  Law.  T.   103. 


416  LAW    OF     WILLS. 

sues,  there  is  in  law  no  reasonable  ground  for  such  resistance, 
and  contestant  can  not  have  costs  out  of  the  estate.^^*^  While 
no  fixed  line  can  be  drawn  between  the  different  courts,  since 
the  taxation  of  costs  in  such  cases  as  contest  is  peculiarly  with- 
in the  discretion  of  the  court,  the  rule  practically  enforced  in 
many  courts  ordinarily  is,  in  the  absence  of  special  circum- 
stances, that  the  defeated  party  should  pay  the  costs  of  the  pro- 
ceeding.^^'^ 

§345.     Attorney  fees. 

In  most  jurisdictions  attorney's  fees  are  not  regarded  as 
costs  unless  by  virtue  of  a  statutory  provision,  and  accordingly 
are  not  to  be  paid  out  of  the  estate,  but  by  the  party  incurring 
them,  even  where  the  circumstances  are  such  that  he  may  re- 
cover his  costs.^^^  In  some  states  the  opinion  is  expressed  that 
attorney's  fees  are  to  be  allowed  in  the  discretion  of  the 
court.^^^  But  even  where  such  view  is  taken,  attorney's  fees 
are  not  allowed  where  attorney  had  a  contract  with  defeated 
contestants  for  a  certain  proportion  of  the  estate  if  success- 
ful,^^^  nor  for  ser^dces  rendered  to  one  legatee  alone,^^^  nor  for 
services  rendered  to  unsuccessful  proponent  f^^  nor  to  unsuc- 
cessful contestant,  unless  some  circumstances  stronger  than 
good  faith  on  his  part  and  probable  cause  for  contest  render 
them  proper.^^^  There  is  a  diversity  of  opinion  upon  this  last 
point,  however,  some  courts  allowing  a  defeated  contestant  his 

sse  Burr    v.    Burr,    53    N.    J.    Eq.  ssn  Turner's  Guardian  v.  King,  32 

627.  (Ky.)   S.  W.  941;  McClary  v.  Stull, 

3X'  Browning  v.  Mostyn,  6G  L.  J.  44  Neb.   175. 

37;   Egbers  v.  Egbers,   177  111.  82;  39o  McClary  v.  Stull,  44  Neb.  175. 

Wallace  v.  Sheldon,  56  Neb.  55 ;  76  39i  Atkinson  v.   May's  Estate,  57 

N.  W.  418.  Neb.  137;  77  N.  W.  343. 

3SS  oimstead's  Estate,  120  Cal.  392  Clark  v.  Turner,  50  Neb.  290; 
447 ;  52  Pac.  804 ;  Morvant's  Succes-  69  N.  W.  843.  At  any  rate,  no 
sion,  46  La.  Ann.  301 ;  Bonanza's  allowance  can  be  made  in  the  con- 
Succession,  47  La.  Ann.  1451 ;  Beau-  test  proceeding,  but  application 
regard's  Succession,  49  La.  Ann.  should  be  made  to  the  court  of  pro- 
1176;  Bro^vn  v.  Corey.  134  Mass.  bate  powers  in  settling  the  estate. 
249;  Titlow's  Estate,  163  Pa.  St.  393  Wallace  v.  Sheldon,  56  Neb. 
35.  55;  76  N.  W.  418. 


LAW     OF    WILLS.  ^' 

costs  and  attorney's  fees  where  there  was  probable  cause  for 

contest.^  ^"^ 

Where  the  executor  is  a  necessary  party  to  the  contest  he 
may  employ  counsel  to  defend  the  will,  and  charge  their  expen- 
ses "^against  the  estate.=^^^  Where  the  executor  is  not  a  necessary 
party  to  the  contest  he  can  not  charge  the  services  of  such  coun- 
sel as  he  may  see  fit  to  employ  against  the  estate/^^*'  and  wher'3 
fees  are  allowed,  the  court  will  grant  reasonable  ones.  Thus 
when  the  estate  was  worth  about  five  thousand  dollars,  and  the 
questions  presented  by  the  contest  were  simple,  and  the  trial 
lasted  six  days,  it  was  held  that  fees  should  be  allowed  not  to 
exceed  three  hundred  dollars  a  side,  and  to  but  one  attorney  on 
a  side.^^^ 

When  the  executor  defends  the  will  in  his  ofiicial  capacity 
unsuccessfully,  he  is  usually  not  personally  responsible  for 
the  attorney's  fees  thus  incurred.^^^ 

§346.     Validity  of  agreements  with  reference  to  contest. 

A  contract  between  the  parties  interested  respectively  in  ob- 
taining and  resisting  the  probate  of  a  will,  if  made  with  full 
knowledge  of  the  facts,  and  if  free  from  misrepresentation, 
fraud,  and  deceit,  is  upheld  by  the  courts  as  a  valid  contract. 
Thus  contracts  between  the  heirs  or  next  of  kin  on  the  one 
hand,  and  the  beneficiaries  on  the  other,  by  which  the  heirs  or 
next  of  kin  acree  not  to  contest  the  will,  are  upheld.^^^  So  are 
similar  contracts  made  between  the  testator,   in  his  lifetime, 

30-t  Gorkow's     Estate,     20     Wash.  39s  Fenner  v.  McCan,  49  La.  Ann. 

563.  600. 

395HeflFner's     Succession,    49    La.  399  Boughey  v.   Minor    (1893),   P. 

Ann.  407;  Bower's  Accounts  (Ohio),  18L     Waller  v.  Marlvs,  100  Ky.  541 

17    Weekly    Law     Bull.     80;     Fitz-  (a   contract   not   to   oppose   probate 

Simmons   v.    Safe   Deposit    Co.,    189  and  to  withdraw  contest  in  consid- 

Pa.    St.    514;    42    Atl.    41;    Lassiter  eration  of  the  payment  by  the  pro- 

V.  Travis,  98   Tenn.   330;    39   S.  W.  ponent,   if  successful,  of  the  legacy 

226.  which  testatrix  had  intended  to  give 

390  Andrews  v.   ^Vndrews,   7   O.   S.-  promisor). 
148. 

397  Camplwll    v.    McGuiggan     (N". 
J.   Prer.),   34  Atl.   383. 


418  LAW    OF    WILLS. 

and  his  heirs  or  next  of  kin.^^^  So  a  contract  entered  into 
between  the  heirs  and  devisees,  to  distribute  the  estate  as  in 
cases  of  intestacy  on  consideration  of  abstaining  from  litiga- 
tion, is  valid.^°^  So  is  a  contract  to  distribute  the  estate  accord- 
ing to  the  will  without  probating  it;^*^^  or  to  set  "aside  an  order 
admitting  the  will  to  probate  with  consent  of  the  court,  and 
distribute  the  estate  without  reference  to  the  will.^*^^  And  in 
a  proceeding  to  probate  a  will  it  was  held  that  a  contract  to  sup- 
press the  will  and  distribute  the  estate  as  in  intestacy  was  a 
valid  defense.^^'* 

The  propriety  of  this  view  of  the  law  is  very  doubtful.  After 
the  will  is  probated  the  beneficiaries  m-ay  contract  with  refer- 
ence to  the  property  given  them  by  will  just  as  they  may  with 
reference  to  property  acquired  in  any  other  way.^°^  If  two 
legatees  agree  upon  any  division  of  their  legacies  between  them- 
selves, another  legatee  can  not  be  heard  to  object.^^^  But,  to 
concede  to  the  beneficiaries  the  right  to  suppress  a  will,  us- 
ually a  criminal  act,  and  to  refuse  probate  to  a  will  which  is  in 
itself  perfectly  valid,  by  reason  of  a  subsequent  agreement  be- 
tween the  heirs  and  the  beneficiaries,  is  so  contrary  to  the  policy 
of  the  law  of  wills  that  on  sound  principle  the  position  seems 
untenable. 

Where  the  contract  is  made  between  certain  of  the  oppos- 
ing claimants  in  fraud  of  other  claimants,  it  is  void."**^^  Thus  an 
agreement  between  two  of  the  heirs  of  testator  by  which  one 
of  them  was  to  furnish  the  money  necessary  to  conduct  a  col- 
lusive contest,  in  which  B,  the  other,  was  to  be  plaintiff,  and 
A  one  of  the  defendants,  A  to  receive  compensation  for  the 
loss  of  his  legacy  by  being  paid  by  B,  if  successful,  was  held 

*oo  Garcelon's     Estate,     104     Cal.  404  Stringfellow  v.  Early,  15  Tex. 

570;  Gore  v.  Howard,  94  Term.  577.  Civ.  App.  597. 

401  Stringfellow  v.  Early,  15  Tex.  Contra    Finch    v.    Finch,    14   Ga. 

Civ.   App.   597,    citing    Phillips    v.  362. 

Phillips,  8  Watts,  195.  405  Napier    v.    Anderson,    95    Ga. 

•402  Knight    V.    Knight,    113    Ala.  618. 

697.  ^oeWilkins   v.   Hukill,    115   Mich. 

403  L.    &    N.     R.    R.    V.    Sanders  594. 

(Ky.),  44  S.  W.  644.  407  See  following  note. 


419 

LAW    OF     WILLS. 


void  where  the  object  of  the  agreement  was  to  exclude  a  dev- 
isee from  any  share  under  the  wilL-«  It  is  held  that  where 
probate  binds  the  world,  the  heirs  and  beneficiaries  can  not  sub- 
mit a  contest  to  arbitration.-*^  Where  the  court  enters  a  con- 
sent decree  setting  the  will  aside,  the  parties  who  consented 
thereto  can  not  afterwards  be  heard  to  complain  of  the  de- 
cree '''  But  an  attorney  has  not,  by  virtue  of  his  employment, 
authority  to  consent  to  a  verdict  without  evidence  to  support 
it;  and  his  acts  do  not  bind  any  of  his  clients  except,  such  as 
consented  thereto.'*** 

408  Gray  v.  McReynolds,  65  lo.  4"  Cooch  v.  Cooch,  18  Ohio  146. 
461;  Ridenbaugh  v.  Yo-uig,  145  Mo.  -i  Jordan  v.  Russell,  8  Weekly 
2Y4                                                                    Law  Bull.  91. 

409  Carpenter  v.   Bailey,   121   Cal. 
582;   GO  Fac.   Ifj2 


420  LAW     OF     WILLS. 


CHAPTER.  XVIII. 

PROBATE   AND   CONTEST   OF   LOST  AND  SPOLIATED 
WILLS  AND  FOREIGN  WILLS. 


I— LOST  AND  SPOLIATED  WILLS 


§347.     Definition. 

The  term  ^'lost  will"  is  used  to  denote  all  wills  which  have 
not  been  revoked  bv  testator,  but  can  not  be  produced  for  ad- 
mission to  probate.^  A  totally  spoliated  will  is  a  special  type 
of  lost  will,  which  has  been  entirely  destroyed  by  some  one  other 
than  testator  without  his  authority.^ 

§348.     Effect  on  probate  of  loss  or    total    spoliation    of    will. 

The  effect  of  the  inability  of  proponents  to  produce  the  will 
for  probate  is  different  in  the  different  states,  according  to  the 
importance  which  the  state  attaches  to  its  production.  On  the 
one  hand,  the  party  who  destroyed  the  will  ought  not  to  be  per- 
mitted to  gain  by  his  wrongful  act;    while  on  the  other,  many 

1  If  the  will  was  destroyed,  torn  ~  We  have  seen  that  the  destruc- 

cancelled,  and  the  like,  by  testator,  tion   of   the   will   through   accident, 

with  intent  to  revoke  it,  or  by  some  or    by    testator    while    incompetent, 

one  by  the  testator  duly  authorized,  or   by  some  one  not  authorized  by 

it  is,  of  course,  revoked,  and  is  of  testator    in    the   manner    prescribed 

no  validity  whatever.     See  Chapter  by    law,    does    not    work  a  revoca- 

XIV,    Sees.   246-252.  tion.     See  Sec.  261. 


LAW     OF     WILLS. 


421 


revoked  wills  might  be  probated  under  a  liberal  admission  of 
lost  wills  to  probate.  Accordingly  the  states  may  be  divided  as 
to  their  views  upon  this  point  into  two  classes.  In  states  of  one 
class,  any  lost  will  may  l)e  admitted  to  probate  upon  proper  evi- 
dence of  its  execution  and  contents,  and  of  the  fact  that  it  was 
not  revoked  by  testator.^  In  states  of  the  other  class  only  such 
lost  wills  as  can  be  proved  to  have  existed,  in  due  legal  form, 
and  unrevoked  after  the  death  of  testator,  or  his  insanity,  or 
other  cause  which  deprived  him  of  capacity  to  revoke  his  will, 
can  be  admitted  to  probate.^  An  omission  in  the  finding  that 
the  will  was  in  existence  after  testator's  death  does  not,  how- 
ever, make  such  order  subject  to  collateral  attack.^  The  sub- 
ject of  probate  of  lost  wills  is  the  subject  of  very  exhaustive 
legislation,  more  minute  in  detail  than  the  legislation  upon 
ordinary  prol)ate  matters-;  and  a  lost  will  can  be  admitted  to 
probate  only  when  it  comes  within  the  provisions  of  the  stat- 
ute.^ 

§349.     The  court. 

The  statutes  provide  what  court  shall  have  jurisdiction  to 
admit  a  lost  will  to  probate.  It  is  usually  the  court  of  ordi- 
nary probate  jurisdiction.'^  In  some  other  states  courts  of  gene- 
ral equity  powers  have  jurisdiction  to  entertain  actions  to  es- 
tablish a  lost  will.* 

3  Mills  V.  Milhvard,  L.  R.  15  P.  in  his  lifetime.  Hence,  under  no 
D.  20;  Sullivan  v.  Sullivan,  114  circumstances  could  a  lost  will  be 
Mich.  189;  Coddington  v.  Jenner,  probated  where  it  was  destroyed 
57  N.  J.  Eq.  528;  41  Atl.  874:  Gard-  by  testator's  own  act.  Perry  v. 
ner's  Estate,  164  Pa.  St.  420;  Valen-  Perry,  49  N.  Y,  S.  R.  291;  21  N.  Y. 
tine's  Will,   93  Wis.  45;    67   N.   W.  Supp.  133. 

12;   Steinke's  Will,  95  Wis.  121.  5  Converse  v.  Starr,  23  O.  S.  491. 

4  Kidder's  Estate,  57  Cal.  282;  e  Jones  v.  Casler,  139  Ind.  382; 
Jones  V.  Caster,  139  Ind.  38*2;  Sin-  Sinclair's  Will,  5  O.  S.  290. 
Clair's  Will,  5  O.  S.  290;  Laurence's  7  Morningstar  v.  Selby,  15  0.  345; 
Estate,  7  Ohio  Dec.  246;  5  Ohio,  N.  Domestic,  etc.  Missionary  Society  v. 
P.  20;  Harris  v.  Harris,  10  Wash.  Eells,  68  Vt.  497;  Valentine's  Will, 
555.  In  New  York  a  will  may  be  93  Wis.  45 ;  67  N.  W.  12. 
admitted  to  probate  only  if  it  was  s  Hall  v.  Allen.  31  Wis.  691;,Val- 
in  existence  at  the  death  of  testa-  entinc's  Will,  93  Wis.  45. 

tor,   or  was   fraudulently   destroyed 


422  LAW    OF    WILLS. 

§350.     Parties. 

In  an  action  to  admit  a  lost  will  to  probate  the  beneficiaries 
under  the  will,  and  those  who  would  take  if  such  will  were  not 
admitted  to  probate,  are  parties.^ 

§351.     Notice! 

Notice  is  almost  always  specifically  provided  for  in  cases 
of  probate  of  lost  wills,  even  where  notice  may  be  dispensed 
with  in  ordinary  wills.^*^  If  the  parties  interested  do  not  reside 
in  the  county,  notice  must  be  given  by  publication,  notice  to  the 
administrator  not  being  sufiicient.^^ 

§352.     Petition. 

The  statute  and  the  peculiarities  of  the  case  make  a  peti- 
tion in  action  to  establish  a  lost  will  far  more  necessary  than 
in  an  ordinary  probate  proceeding,  where  the  will  can  be  of- 
fered and  an  oral  motion  to  admit  to  probate  can  be  made.  Ac- 
cordingly it  is  usually  required  that  a  lost  will  be  admitted  to 
probate  only  on  petition,^ ^  and  this  petition  must  allege  all 
necessary  facts  to  entitle  the  will  to  be  admitted  to  probate  as  a 
lost  will.  Thus,  where  it  is  required  that  the  will,  in  order  to 
be  admitted  to  probate,  shall  be  in  existence  after  the  death  of 
testator,  the  petition  must  allege  that  fact,^^  and,  unless  the 
statute  requires  it,  an  answer  need  not  be  verified,^'* 

§353.     Jury. 

The  rules  applicable  to  ordinary  probate  generally  control 
here,   unless   expressly  altered  by  statute.      Thus, .unless   ex- 

9  Taylor  v.  Bennett,  1  Ohio  C.  C.  i3  Jones  v.  Casler,  1,39  Ind.  382 
95;  Valentine's  Will,  93  Wis.  45;  67  (where  an  allegation  that  the  will 
N.  W.   12.                                                       was    destroyed    after    the    death    of 

10  Goods  of  Pearson  (1896),  P.  testator  shows  this  with  sufficient 
289.  certainty)  :     Harris    v.    Harris,     10 

11  Baugarth  v.  Miller, 26  O.  S.  541.  Wash.  555  (where  an  allegation  that 

12  Wright  V.  Fultz,  138  Ind.  594;  "deceased  at  the  time  of  his  death 
Jones  V.  Casler,  139  Ind.  382;  Har-  left  a  will"  is  held  sufficient). 

ris  V.  Harris.  10  Wash.  555.  i*  Wright  v.  Fultz,  138  Ind.  594. 


423 

LAW     OF    -WILLS. 

pressly  provided  by  statute,  no  right  to  a  jury  trial  exists  in  an 
action  to  admit  a  lost  will  to  probate  -  and  the  court  need  no 
duplicate  instructions  to  the  jury.  Thus,  after  charging  that 
the  jury  may  consider  the  declarations  of  testator  only  on  one 
point,  it  is  not  error  to  refuse  to  charge  that  such  declarations 
can  not  be  considered  on  another  point.^^ 

§354.     Contest. 

Where  the  statute  provides  a  proceeding  like  contest  as  a  di- 
rect attack  upon  an  order  admitting  a  lost  will  to  probate  such 
method  is  exclusive,  and  error  will  not  lie  to  the  order  of  pro- 
bate ^^  Upon  contest  of  a  lost  or  spoliated  will,  it  is  lor  the 
jury  to  determine  what  the  provisions  of  the  will,  as  legally  ex- 
ecuted by  testator,  were.^«  The  issue  in  such  cases  is  not  re^- 
stricted  to  the  validity  of  the  will  as  admitted  to  probate. 
However,  a  verdict  and  judgment  will  not  be  set  aside  where 
the  evidence  is  insufficient  as  to  some  property  of  small  value, 
but  clear  as  to  the  bulk  of  the  property. 

II— FOREIGN  WILLS. 

§355.     Definition  of  foreign  will. 

A  foreign  will,  in  the  sense  that  the  term  is  used  in  the  law 
of  probate,  is  a  will  executed  in  a  state  or  country  by  a  testator 
there  domiciled,  admitted  to  probate  there  upon  the  death  of 
such  testator,  and  subsequently  offered  for  probate  or  registry 
in  another  state.  The  question  of  what  law  controls  the  valid- 
ity of  such  will  is  discussed  elsewhere.^^  Accordingly,  where 
a  will  is  admitted  to  probate  in  a  state  in  which  testator  was 
not  domiciled  at  his  death,  but  in  which  he  left  property,  a  sub- 
sequent probate  in  the  jurisdiction  in  which  the  testator  was 
domiciled  at  his  death,  must  be  an  original  probate  of  the  will 

15  Wright  V.  Fultz,  138  Ind.  594.       437;    Holman    v.    Riddle,    8    0S. 

16  McDonald    v.    McDonald,     142       384 ;  Brundige  v.  Benton,  17  Weekly 
j^^    gg  Law  Bull.   (Ohio),  243. 

__  ',     ,  T £•<>    r>     c  i9TTiivnes    v.    Havnes,    33    O.    S. 


iTlIollrah   V.    Lasance,    63    0.    S.  is  llaynes    v.    Havnes, 


58 


598. 


18  Behrens   v.    Behrens,    47    0.    S.  ^o  Banning  v.   Banning,   12   O.   S. 

323;    Havnes   v.   Havnes    33,   O.    S.       437. 
598;   Banning  v.  Banning,  12  O.  S.  2^  See  Chapter  IV. 


424  LAW    OF    WILLS. 

as  a  domestic  will,  and  not  as  a  foreign  will."-  In  this  chapter 
it  is  assumed  that  the  will  is  valid  as  to  its  form  in  the  juris- 
diction in  which  testator  was  not  domiciled ;  and  that  the  only 
question  for  discussion  is  as  to  the  necessity,  method,  and  ef- 
fect of  probating  it  in  such  jurisdiction. 

§356.     Nature  of  probate  of  foreign  will. 

In  some  states  original  probate  of  a  foreign  will  is  allowed, 
though  such  probate  can  only  affect  the  property  of  testator 
within  the  state  where  the  will  is  admitted  to  probate.^^  The 
usual  practice,  however,  is  to  provide  that  after  the  will  is  ad- 
mitted to  probate  in  the  state  of  testator's  domicile  it  be  pro- 
pounded in  any  other  state  in  which  testator  has  property.-^ 
The  court  having  jurisdiction  to  admit  such  will  to  probate  is 
the  court  within  whose  territorial  jurisdiction  such  property 
of  testator  is  situated,^^  and  it  is  error  to  admit  the  will  to  pro- 
bate unless  evidence  is  offered  to  show  that  there  is  property  of 
testator  to  administer  within  the  territorial  jurisdiction  of  the 
court  before  which  the  will  is  offered  for  probate.-*^  The  stat- 
utes for  admitting  a  domestic  will  to  probate,  and  for  the  effect 
of  the  order  of  probate,  are  generally  taken  as  analogies  in 
cases  of  foreign  wills  where  applicable.^'''  However,  the  legis- 
lature often  provides  different  statutes  for  the  two  classes  of 
wills.  When  this  is  the  case  it  is  very  dangerous  to  assume  that 
the  statute  for  domestic  wills  can  have  any  effect  in  case  of  for- 
eign wills.28     Further,  in  details  of  procedure  a  distinction  is 

22  Tar  bell  V.  Walton  (Vt.)  (1899),  26  Southard's  Will,  48  Minn.  ,37. 
45  Atl.  748.  27Whalen  v.  Nesbet,  95  Ky.  464. 

23  Walton  V.  Hall,  66  Vt.  455.  28  Barr    v.    Chapman      (Ohio      C. 

24  Calloway  v.  Cooley,  50  Kan.  P.)  ;  30  W.  L.  B.  264  (right  of  ap- 
743;  Clow  V.  Plummer,  85  Mich.  peal  from  refusal  to  admit  to  pro- 
550 ;  Mower  v.  Verplanke,  101  Mich.  bate  exists  in  domestic,  but  not  in 
209;  105  Mich.  398  ;  Putnam  v.  Pit-  foreign,  wills)  :  Hardin  v.  Jamison, 
ney,  45  Minn.  242:  Southard's  Will.  60  (Minn.)  112;  61  N.  W.  1018  (ex- 
48  Minn.  37;  Babcock  v.  Collins,  ecutor  named  in  domestic  will  has 
60  Minn.   73;    61   N.   W.    1020.  first  right  to  be  appointed,  but  not 

25  Putnam    v.    Pitney,    45    Minn.  where  named   in   foreign   will ) . 
242;    Southard's    Estate,    48    Minn. 

37. 


LAW     OF     WILLS. 


425 


often  made  in  the  states  of  the  United  States  between  a  for- 
eign will  admitted  to  probate  in  a  sister  state  and  a  foreigii 
will  from  a  country  other  than  the  United  States.^^  Upon  the 
admission  of  the  foreign  will  to  probate,  even  if  delayed  until 
after  a  sale  made  in  pursuance  of  a  power  conferred  by  will, 
the  probate  in  such  foreign  state  will  relate  back  to  testator's 
death  and  perfect  such  sale.^" 

§357.     Parties  and  procedure. 

Any  j)erson  having  a  legal  interest  under  the  foreign  will 
may  apply  for  its  admission  to  probate.^^  An  allegation  in  the 
petition  that  proponent  was  "interested  as  a  subsequent  pur- 
chaser of  the  estate  of  the  deceased"  was  held  sufficient  to  show 
a  legal  interest.^^  Unless  the  statute  requires  a  petition  for 
admitting  such  will  to  probate,  none  is  necessary.^^  iN^otice  is 
usually  required  to  be  given  by  publication,  and  as  the  will  is 
offered  for  probate  where  testator's  property  is  situate,  but 
where  testator  was  not  domiciled,  the  proceeding  is  even  more 
in  the  nature  of  a  proceeding  m  rem,  than  the  probate  of  a 
domestic  will.^'*  xVt  the  hearing  in  a  proceeding  to  admit  a 
foreign  will  to  probate,  the  certified  copy  of  the  will  and  of  the 
order  admitting  it  to  probate  in  the  foreign  jurisdiction  are 
necessary  to  be  offered  in  evidence,^^  and  the  court  has  no 
jurisdiction  to  admit  the  will  to  probate  unless  the  certified 
transcript  of  the  order  of  probate  in  the  foreign  court  is  pro- 
duced.^*^  The  certified  copy  of  the  will  and  the  transcript  of 
the  order  of  probate  in  the  f  oreigii  state  raise  a  presumption  that 
all  necessary  legal  formalities  at  such  probate  were  complied 

29  Carpenter  v.   Denoon,   29   O.    S.  tion   M'as   required   only   in    case    of 

379.  wills  made  out  of  the  United  States. 

.  30  Babcock    v.    Collins,    60    Minn.  Carpenter  v.  Denoon,  29  O.  S.  379. 

73;   61  N.  W.  1020.  The  question  is  entirely  one  of  stat- 

31  Mower  v.  Verplanke,  101  Mich.  iitory  requirement. 

209 :  105  Mich.  398.  ss  Mower  v.  Verplanke,  101  Mich. 

32  Mower  V.  Verplanke,  101   Mich.  209;    Clow    v.    Plummer,    8.5    Mich. 
209 ;  105  Mich.  398.                         -  550. 

33  Evansville    Ice,    etc.    Company  36  Mower  v.  Verplanke,  101  Mich. 
V.  Winsor,   148  Ind.  682.  209:    Clow    v.    Plummer,    85    Mich. 

34  But  in  Ohio  notice  by  publica-  550. 


426  LAW    OF    WILLS. 

with,^^  and  such  evidence  is  conclusive  of  the  validity  of  the 
foreign  probate,  and  is  not  subject  to  collateral  attack,^®  unless 
such  transcript  shows  on  its  face  that  the  will  was  not  properly 
admitted  to  probate,  in  which  case  it  is  held  that  the  order  of 
the  foreign  court  is  not  conclusive.^ ^  Where  both  parties  pro- 
ceed on  the  theory  that  real  estate  of  testator  is  in  the  juris- 
diction of  the  court,  the  omission  to  introduce  formal  proof  of 
that  fact  is  not  reversible  error.^*^  Admission  to  probate  and 
record  of  a  foreign  will  in  one  county  passes  title  to  all  the  real 
estate  in  that  state,  unless  the  statute  specifically  requires  such 
will  to  be  recorded  in  each  county  where  the  land  is  situate.'*^ 
•  It  has  been  held  error  to  admit  the  copy  of  the  will  to  probate, 
as  the  order  should  show  that  the  original  will  was  admitted.^'-^ 
The  rules  applicable  to  probate  of  domestic  wills  are  not  always 
made  applicable  by  statute  to  the  probate  of  foreign  wills.  Thus 
even  where  probate  of  a  domestic  will  is  an  ex  parte  proceeding, 
no  resistance  being  allowed,  the  probate  of  a  foreign  will  may 
give  opportunity  for  contest,^^  and  error,  and  not  appeal,  is 
the  remedy  for  a  refusal  to  admit  the  will  to  probate  ;^^  or  the 
will  may  be  repropounded  on  new  evidence.'*^  When  a  for- 
eign will  is  admitted  to  probate  it  has  the  same  standing  in  la^v 
as  a  domestic  will.'*® 

37  Newman  v.  Steel  Company,  80  eous,  such  decree  could  not  be  at- 
Fed.   228;    Moody  v.  Johnston,   112       tacked   collaterally. 

N.  Car.  798.  43  Barr's    Will,    30    Weekly    Law 

38  Dickey  v.  Vann,  81  Ala.  425;  Bull.  386;  Barr  v.  Closterman,  2 
Calloway  v.   Cooley,   50  Kan.   743;       Ohio  C.  C.  387. 

32   P.   372;    Babcock  v.   Collins,   60  4*  Barr  v.  Closterman,  2  Ohio  C. 

Minn.  73;  61  N.  W.  1020.  C.  387. 

39  Currell  v.  Villars,  72  Fed.  330 ;  45  Barr  v.  Closterman,  3  Ohio  C. 
Nelson  v.  Potter,  50  N.  J.  L.  324;  C.  441.  The  court  may  revoke  an 
Barr  v.  Closterman,  2  Ohio,  C.  C.  order  admitting  a  foreign  will  to 
387.  probate    where    such    order    is    ob- 

40  Barr  v,  Closterman,  2  Ohio,  C.  tained  by  fraud.  Barr  v.  Closter- 
C.  387.  man,  7  Ohio  C.  C.  371. 

41  Carpenter  v.  Denoon,  29  O.  S.  46  Hoysradt  v.  Tionesta  Gas  Com- 
379.  pany,    194    Pa.    St.     251;     45     Atl. 

42  St.  Joseph's  Convent  of  Mercy  62.  (Hence  a  power  of  sale  given 
V.  Garner,  53  S.  W.  298 ;  66  Ark.  by  such  will  is  effective  to  pass  a 
623.     However,  being  merely  erron-  valid  legal  title.) 


LAW     OF  '  WILLS.  ^^ 

§358.     Registry  of  foreign  will. 

Ill  other  states  where  the  foreign  will  af=fects  the  title  to  real 
property  situate  within  such  state,  it  is  merely  required  that 
the  foreign  will  shall  be  recorded  in  the  county  where  the  land 
ig  situate— usually  in  the  recorder's  office^^— and  Unless  the  for- 
eign will  is  thus  recorded,  it  can  not  affect  the  title  to  such 
realty.^*^  But  such  will  may  be  recorded  even  after  litigation 
upon  the  title  to  the  realty  has  been  taken  to  the  state  supreme 
court,  and  when  recorded  will  date  back  to  testator's  death.^^ 

47  Wells,  Fareo  &  Co.  v.  Walsh,  *"  Wells,  Fargo  &  Co.  v.  Walsh, 
88  Wis.  534                                                 ^^-   ^'^^^^   ^^'^'    ^*^  Carpenter  v.  De- 

48  Wells,  Fargo  &  Co.  v.  Walsh,       noon,  29  O.  S.  379. 
87    Wis.   67. 


428  LAW    OF    WILLS. 


CHAPTER  XIX. 

EVIUENCe  IN  PROBaTE  AND  CONTES" 


I— COMPETENCY  OF  WITNESSES  AND  GENERAL  PRIN- 
CIPLES CONTROLLING  ADMISSIBILITY  OF  EVIDENCE. 


§359.     Scope  of  discussion. 

The  law  of  evidence  in  probate  and  contest  is  connected  with 
the  substantive  law  of  wills  even  more  closely  than  the  law  of 
evidence  upon  most  topics  is  connected  with  the  correspond- 
ing substantive  law.  This  is  true  especially  in  the  topics 
of  mental  capacity  and  undue  influence.  On  account  of  this 
importance  arising  out  of  the  close  and  vital  connection  be- 
tween the  substantive  law  of  wills  and  the  law  of  evidence,  i 
discussion  of  the  latter  will  be  undertaken  here ;  not  with  the 
purpose  of  investigating  the  law  of  evidence  in  general,  but 
only  of  presenting  those  questions  which  from  their  nature  most 
frequently  arise,  and  which  serve  to  explain  and  illustrate  the 
doctrines  of  the  substantive  law. 

§360.     Common  law  rule  as  to  competency. 

As  we  have  seen,  the  common  law  absolutely  excluded  the  tes- 
timony of  certain  classes  of  persons  from  the  consideration  of 
the  jury.     The  reason  and  extent  of  the  rule  is  thus  stated  by 


LAW    OF    WILLS. 


429 


the  standard  American  authority  on  Evidence:  "It  is  obvi- 
ously impossible  that  any  test  of  credibility  can  be  infallible. 
All  that  can  be  done  is  to  approximate  to  such  a  degree  of  cer- 
tainty as  will  ordinarily  meet  the  justice  of  the  case.  The 
question  is  not  whether  any  rule  of  exclusion  may  not  sometimes 
shut  out  credible  testimony,  but  whether  it  is  expedient  that 
there  should  be  any  rule  of  exclusion  at  all.  If  the  purposes 
of  justice  require  that  the  decision  of  causes  should  not  be  em- 
barrassed by  statements  generally  found  to  be  deceptive,  or 
totally  false,  there  must  be  some  rule  designating  the  class  of 
evidence  to  be  excluded ;  and  in  this  case,  as  in  determining  the 
ages  of  discretion,  and  of  majority,  and  in  deciding  as  to  the 
liability  of  the  wife  for  crimes  committed  in  company  with 
the  husband,  and  in  numerous  other  instances,  the  common  law 
has  merely  followed  the  common  experience  of  mankind.  It 
rejects  the  testimony  (1)  of  parties;  (2)  of  persons  deficient 
in  understanding;  (3)  of  persons  insensible  to  the  obliga- 
tions of  an  oath;  and  (-4)  of  persons  whose  pecuniary  interest 
is  directly  involved  in  the  matter  at  issue ;  not  because  they 
may  not  sometimes  state  the  truth,  but  because  it  would  be 
ordinarily  unsafe  to  rely  upon  their  testimony."^  Under  the 
rules  of  coverture  neither  husband  nor  wife  could  testify  when 
the  other  was  a  party,  nor  when  the  pecuniary  interest  of  the 
other  was  directly  involved.^  And  the  principle  of  excluding 
parties  as  well  as  that  of  excluding  those  who  were  directly 
interested  financially  applied  to  exclude  an  executor  under  the 
will,  as  he  was  a  party  to  the  record,  and  liable  in  the  first 
instance  for  costs.^ 

At  common  law  one  convicted  of  certain  infamous  crimes 
was  thereby  rendered  incompetent  as  a  witness.  But  where  the 
witness  had  been  convicted  of  perjury,  and  under  the  local 
statute  was  incompetent  to  testify,  it  was  held  that  the  pardon 
of  the  executive  given  to  one  who  wrote  and  signed  a  will  for 
testator  at  his  request,  before  such  pardon,  rendered  him  a 
competent  Avitness  to  the  will 


1  4 


1  Greenleaf    on    Evidence,    Vol.    I,  3  Greenleaf    on    Evidence,    Vol.    I, 
Sec.  326.  Sec.  .347. 

2  Greenleaf,    Vol.     I,     Sees.     334,  *  Dielil    v.    Rogers,     169    Pa.    St. 
335.  310:   47  Am.  St.  Rep.  908. 


430  LAW    OF    WILLS. 

§361.     Modern  statutory  rules. — Communications  with  aecedent 
held  inadmissible. 

The  rules  of  common  law,  as  to  competency  of  witnesses, 
will  not  be  discussed  in  detail  as  they  have  been  greatly  modi- 
fied or  abolished  by  statute  in  most  states.  Persons  deficient 
in  understanding,  such  as  the  insane,  the  young,  and  the  like, 
are  not  allowed  to  testify.  The  other  classes  of  incompetents 
at  common  law  are,  except  in  some  specified  cases,  allowed  to 
testify,  their  former  disqualification  possibly  affecting  their 
credibility  but  not  their  competency.^ 

An  exceptional  case  in  which  parties  are  not  allowed  to  tes- 
tify as  to  certain  facts,  in  many  states,  exists  where  among  other 
capacities  the  adversary  party  sues  or  defends  as  executor,  ad- 
ministrator, heir,  devisee  or  legatee  of  a  deceased  person.  This 
case,  of  course,  always  arises  in  a  contest  of  a  will.  The  ad- 
missibility of  the  evidence  of  the  heirs,  devisees,  and  the  like, 
depends  upon  the  terms  of  the  statute  already  referred  to. 
If  no  exception  is  made  in  favor  of  will  contests,  no  person 
who  is  a  party  to  the  contest  can  testify  as  to  facts  occurring 
before  the  death  of  the  alleged  testator. 

Under  these  statutes  heirs  and  devisees  are,  of  course^  in- 
competent,*^^' so  is  the  executor,'^  and  by  statute  in  many  states 
so  is  husband  or  wife  of  a  party,^  as  is  the  husband  of  a 
residuary  legatee.^ 

Under  this  rule  the  question  is  not  who  are  adverse  parties 
on  the  record,  but  who  are  adverse  in  interest.  Thus,  in  a 
suit  to  establish  a  will,  the  executor  under  such  will  was  made 
a    co-defendant   with   the    disinherited    heirs,    and    was    then 

5  See   Sees.    196,    198.  9  Valentine's    Will,    93    Wis.     45 

6  Hopkins  v.  Wheeler  (R.  I.)  (held  incompetent  to  testify  that 
(1900),  45  Atl.  551;  Perkin's  Es-  on  the  day  before  the  death  of 
tate,  109  lo.  216;  80  N.  W.  335;  testatrix  the  will  was  in  her  posses- 
Furenes  v.  Eide,  109  lo.  511;  80  sion).  Where  one  of  the  parties 
N.  W.  539.  has    died,    pending   contest,    an   ad- 

And  see    Allison's    Est.    104    lo.  versary  party  can  not  testify  to  ad- 

130.  missions  made  by  decedent  against 

7  Bardell  v.   Brady,   172   111.   420.  his  interest.    Manogue  v.  Herrell,  13 

8  Smith    V.    Smith,    168    111.    488;  App.  D.  C.  455. 
Bevelot  v.  Lestrade,   153  111.  625. 


LAW     or     WILLS.  ^■'■ 

called  as  witness  by  plaintiffs.  His  co-defendants  objected, 
and  it  was  held  that  he  was  incompetent.^ «  An  executor  who 
has  resigned  is  a  competent  witness  under  this  rule,  even 
where  his  account  is  unsettled  and  his  fees  unpaid.^^ 

Where  the  surviving  attesting  witness  testifies  to  the  facts 
of  execution,  without  contradiction,  it  is  not  reversible  error 
to  allow  a  legatee  to  testify  to  the  same  facts.^^  Even  where 
the  statute  forbids  testimony  of  a  partj  as  to  any  transaction 
with  deceased,  without  exception  in  favor  of  wills,  a  son,  who 
is  also  a  devisee,  may  testify  to  finding  the  will  among  the 
valuable  papers  of  testator,  where  this  is  material.  This  is 
not  a  transaction  with  the  deceased.^  ^ 

In  Kentucky  the  statute  forlnds  evidence  of  transactions 
with  a  decedent  "to  the  extent  of  affecting  one  who  is  living." 
Under  this  statute  a  devisee  may  testify  to  the  facts  of  execu- 
tion.^^ 

§362.     Communications  with   decedent   admissible  in  will   con- 
test. 

In  many  other  states  an  express  statutory  provision  al- 
lows parties  to  testify  in  a  suit  involving  the  validity  of  a 
will,  even  where  the  adversary  party  is  heir,  devisee,  executor, 
and  the  like.  Under  such  statute  the  competency  of  parties 
in  interest  is  clearly  recognized.^ ^    Thus,  in  contest  the  execu- 


loBardell  v.  Brady,   172  111.  420.  Mich.   411;    Wilson's   Will,    103   N. 

11  Smith   V.    Smith,    168    111.    488.  Y.    374;    Children's   Aid    Society   v. 

12  Hopkins  v.  Wheeler,  R.  I.  Loveridge,  70  N.  Y.  387 ;  Rugg  v. 
(1900),  45  Atl.  551.  ^^gg,  83  N.  Y.  592;  Wilson's  Will, 

13  Cox  V.  Lumber  Co.  124  N.  Car.  103  N.  Y.  374 ;  Bradshaw  v.  Rob- 
78.  erts     (Tex.    Civ.    App.)     52    S.    W. 

14  Flood  V.  Pragoff,  79  Ky.  607 ;  574 ;  Richardson  v.  Richardson,  35 
Hardin  V.  Taylor,  78  Ky.  593.  Vt.    238;    Buckman's    Will,    64    Vt. 

15  Henry  v.  Hall,  106  Ala.  84;  313;  Foster  v.  DicKerson,  64  Vt. 
Spiegelhalter's  Will,  1  Penn.  (Del.)  233;  Manley  v.  Staples,  65  Vt.  370; 
5:  Denning  v.  Butcher,  91  lo.  425;  Martin  v.  McAdams,  87  Tex.  225; 
King  V.  King,  —  Ky.  — ;  42  S.  27  S.  W.  255;  Hays  v.  Ernest,  32 
W.    347;    Stewart   v.   Harriman,   56  Fla.  18;   13  So.  451. 

N.     H.  25;      Lawyer    v.    Smith,    8 


432  LAW    OF    WILLS. 

tor  may  testify j^*^  and  so  may  his  wife.^^  The  devisees  may 
testify  in  contest  under  such  statutes/^  and  so  may  the  hiis- 
l)and  or  wife  of  a  legatee  or  devisee/'-^ 

§363.     Competency  of  subscribing  witnesses. 

The  testimony  of  a  hiwful  subscribing  witness  can  not  bo 
rejected  on  account  of  the  incompetency  of  such  witness.^'^ 
Accordin2:ly  a  subscribing  witness  who  was  competent  at  the 
time  of  execution  may  testify  concerning  the  facts  of  execu- 
tion even  where  by  reason  of  facts  subsequently  arising  he 
has  become  incompetent  through  interest,  or  because  the  ad- 
versary party  is  an  executor,  heir  or  the  like.^^ 

A  probate  jurlge  may  act  as  subscribing  witness  to  a  will,-^ 
but  he  can  not  testify  in  a  j)roceeding  before  himself,  against 
objection.-^ 

§364.     Confidential   communications   to   one   not   a   subscribing' 
witness. 

Under  modem  statutes,  which  alter  the  common  law  rules 
of  competency,  it  is  generally  provided  that  an  attorney  or  a 
physician  can  not  testify  as  to  confidential  communications 
made  to  them  in  their  professional  capacities,  by  a  client  or 
patient,  without  the  consent  of  such  client  or  patient.  This 
exception  often  causes  complications  where  an  attending  phy- 
sician or  an  attorney  is  offered  as  a  witness  to  the  facts  of  ex- 
ecution or  tlie  capacity  of  testator. 

A  physician  who  is  not  a  subscribing  witness    can  not  be 

leBettison   v.    Bromley,    12   East.  is  Holt's  Will,  56  Minn.  33 ;  Gam- 

250;  Hays  v.  Ernest,  32  Fla.  18;  ble  v.  Butchee,  87  Tex.  643;  30 
Millay  v.   Wiley,   46  Me.  230;   Kit-    -  S.  W.  861. 

tredge  v.  Hadgman,  67  N.  H.  254 ;  20  Entwistle  v.  Meikle,  180  111.  9. 

Jordan's    Estate,    161    Pa.    St.    393.  21  Sullivan's      Will,      114      Mich. 

17  Lyon's   Will,   96   Wis.   339.  189;   Holt's  Will,   56  Minn.   33;   22 

18  Hays  V.  Ernest,  32  Fla.  18;  L.  R.  A.  481;  Lyon's  Will,  96  Wis. 
Goldthorp's  Estate,  94  To.  336;  Cox  339. 

V.    Lumber    Co.     124    N.     Car.     78;  22  See    Sec.    199. 

Franklin  v.  Franklin,  90  Tenn.  44;  23  Estes    v.    Bridgforth,    114    Ala. 

Gamble  v.   Buchtee,    87    Tex.    643;       221. 

Martin   v.  McAdams,  87   Tex.   225; 

27  S.  W.  255. 


LAW    OF    WILLS.  ^^" 


called  upon  to  testify  to  facts  learned  by  him  in  kis  profes- 
sional capacity.'^^  It  has  been  held  that  an  attorney  of  the 
testator  may  testify  as  to  the  facts  of  execution,  that  he  in- 
corporated testator's  instructions  into  the  will  as  executed, 
and  that  testator  was  sane.^^  And  testator's  attorney  has  been 
allowed  to  testify  that  a  compromise  agreement,  by  which  tes- 
tator was  to  support  a  child  which  he  claimed  was  not  his 
o%vn,  was  not  a  revocation  of  a  will  disinheriting  such  child.^^ 
It  was  held  proper  to  require  an  attorney  to  testify  to  con- 
versations had  between  himself  and  decedent,  which  were  con- 
fidential, but  not  professional,  as  a  basis  for  inquiring  into  his 
opinion  of  the  mental  condition  of  decedent.^^ 

Upon  the  issue  as  to  the  destruction  of  a  will  during  tes- 
tator's lifetime,  an  attorney  is  not  competent  to  testify  that 
contestant  had  consulted  him  during  testator's  life  in  a  pro- 
fessional capacity  as  to  the  effect  of  such  destruction  of  such 
will.28 

§365.     Confidential  comiminications  to  a  subscribing  witness. 

Where  the  attorney  who  drew  the  will  is  an  attesting  wit- 
ness, it  is  held  that  he  may  testify  even  to  such  facts  of  ex- 
ecution as  were  communicated  to  him  in  his  professional  capa- 
city by  testator.2^ 

This  rule  rests  on  the  theory  that  by  voluntarily  calliTig 
his  attorney  as  an  attesting  witness,  the  testator  impliedly  con- 
sents that  the  attorney  may  testify  to  any  confidential  com- 
munications made  to  him  with  reference  to  the  execution  of 

the  will. 

In  Louisiana  the  notary  may  be  called  as  a  witness  to^  im- 
peach his  formal  certificate  of  his  acts,  attached  to  the  will.=^" 

24Gurley  v.   Peck,    135   Ind.   440.  28  Melntosli   v.   Moore    (Tex.   Civ. 

25  O'Brien    v.    Spalding,    102    Ga.       App.^  1899,  53  S.  W.  611. 


490:  Harp  v.  Parr.  168  111.  459.  29  MeMaster   v.    Scriven,   85    Wis. 

16 

35. 


26  pade'iford's  Estate,  190  Pa.  St.       162. 

30  Solari   v.   Barras,   45   La.   Ann. 

27  Turner's  Appeal,  72  Conn.  305.       1128. 


434  LAW     OF     WILLS. 

An  attorney  who  drew  decedent's  will,   and  was  a  subscrib- 
ing witness  thereto,  is  competent  to  testify  to  its  contents.^ ^ 

§366.     Evidence   of  subscribing  witnesses. 

In  some  jurisdictions  great  weight  is  given  to  the  evidence 
of  the  subscribing  witnesses.^^  In  other  jurisdictions  it  is 
held  that  the  evidence  of  a  subscribing  witness  is  of  no  greater 
weight  than  that  of  other  persons  having  equal  opportunity 
to  know  the  facts,^^  and  it  is  error  to  charge  that  their  evidence 
is  paramount.^^  Unless  specially  required  by  statute,  it  is 
not  necessary  on  contest  to  call  the  attesting  witnesses  to  tes- 
tify   at  all.^^ 

Under  the  statutes  regiilating  the  probate  of  Avills  it  is 
often  required  that  all  of  the  subscribing  witnesses  who  are 
in  the  jurisdiction  should  be  called  as  witnesses.^®  They  need 
not  all,  however,  be  examined  at  the  outset  before  the  will  is 
offered  in  evidence.^'^  Even  where  it  is  error  to  admit  the 
will  to  probate  in  the  absence  of  any  of  the  subscribing  wit- 
nesses, the  probate  can  not  be  attacked  collaterally  because 
less  than  all  were  called.'"*'  And  in  some  jurisdictions  it  is 
specifically  provided  that  a  will  may  be  proved  by  the  tes- 
timony of  one  subscribing  witness  alone,^^  though  even  in 
such  jurisdictions   it  is   held,   as  to  facts  of  execution,   that 

31  Kern  v.  Kern,  154  Ind.  29;  left  undecided  in  Hobart  v.  Cook, 
55   N.   E.    1004.      (The  reason  here       167  Mass.  55. 

suggested    is    that   the   rule    forbid-  36  Howes    v.    Colburn,    165    Mass. 

ding  an  attorney  to  testify  applies  385 :  Hobart  v.  Cook,  167  Mass.  55. 

only   during   the   client's   lifetime.)  37  Howes    v.    Colburn.    165    Mass. 

32  Ball  V.  Kane,  1  Penn.  (Del.),  385;  Morton  v.  Heidorn,  135  Mo. 
90.  608  ;    Crenshaw  v.  Johnson,  120  X. 

33  Eurney  v.  Torrey,  100  Ala.  157 ;  Car.  270. 

Crandall's    Appeal,    63    Conn.    365.  38  Brinkley    v.    Sanford,    99    Ga. 

3-i  Higinbotham    v.    Higinbotham,  130;    25    S.   E.   32;    Mosier  v.  Har- 

106  Ala.   314.      (Issue  of  undue  in-  mon,  29  O.  S.  220. 
fluence  and  insanity. )     McTaggart  v.  39 /^     re     Page,     118     111.     576; 

Thompson  14  Pa.  St.  149.     (Issue  of  Welch  v.  Welch,  9  Rich.    (S.  Car.) 

insanity.)  133:  Stephenson  v.  Stephenson,  Tex. 

35  Harp  V.  Parr,  168  111.  459:  In-  Civ.  App.,   25   S.  W.   649;   Lambert 

gall's   Will,    148    111.    287:    Rigg   v.  v.    Cooper's,    29    Graft.     (Va.),    61; 

Wilton,   13  111.   15.     This  point  was  Thornton  v.  Thornton,  39  Vt.  122. 


LAW    OF    WILLS. 


435 


when  the  subscribing  witness  who  is  summoned  can  not  tes- 
tify to  the  necessary  facts,  it  is  necessary  to  call  all  the  sub- 
scribing witnesses  or  to  account  for  their  absence  satisfactorily 
before  calling  other  witnesses.^^ 

On  the  issue  of  sanity  it  is  not  necessary  in  contest  pro- 
ceedings to  call  all  the  subscribing  witnesses.^^  On  contest 
proof  of  execution  is  not  limited  to  subscribing  witnesses.  Any 
competent  witness  who  has  knowledge  of  the  facts  may  testify 
as  to  what  occurred  at  the  execution  of  the  will.^^ 

The  fact  that  one  of  the  subscribing  witnesses  omitted  to 
testify  to  the  mental  capacity  of  testatrix  does  not  prevent 
the  will  from  being  admitted  in  evidence  in  probate  proceed- 
ings,^^ and  it  is  error  to  exclude  others  than  subscribing  wit- 
nesses who  have  opportunity  of  knowing  the  capacity  of  tes- 
tator,'*"* or  the  facts  of  the  execution  of  the  will."*^ 

It  is  not  error,  when  the  execution  of  the  will  is  not  in 
issue,  to  admit  the  will  in  evidence  and  afterwards  call  the 
subscribing  witnesses.^^ 

§367.     Record  of  evidence  given  at  probate. 

In  some  states,  by  statute,  proponent  may  introduce  the 
copy  of  the  testimony  of  the  subscribing  witnesses  adduced 
at  probate  in  common  form,  instead  of  offering  the  witnesses 
themselves.'*'^  In  such  states  the  use  of  the  original  affidavit 
of  subscribing  witnesses,  instead  of  a  certified  copy  of  such 
affidavit,  is,  if  erroneous  at  all,  not  such  error  as  can  be  raised 
in  the  appellate  court  where  not  raised  on  trial.'**     In  other 

40  Elwell    V.    Convention,    76   Tex.  subscribing  witness  testified  to  the 
514.  capacity  of  testator.) 

41  Kaufman  v.  Caughman,  49  S.  4*  Whitelaw  v.  Sims,  90  Va.  588. 
Car.    159.  45  Trembly  v.  Trembly,  11  Weekly 

42  Robinson   v.   Brewster,   140   111.  Law   Bull.    (Sup.),   50. 

649;  Hobart  V.  Hobart,  154  111.  610;  46  Hobart  v.  Cook,   167  Mass.  55. 

Morton   v.    Heidorn,    135    Mo.    608;  47  Meek s    v.    Lofley,    99    Ga.    170; 

Mays     V.     Mays,      114     Mo.      536;  Hesterberg  v.    Clark,    166   111.   241 ; 

Holmes  v.  Holloman,  12  Mo.  535.  Slingloff    v.    Bruner,    174    111.    561, 

43  Kaufman   v.   Caughman,   49    S.  48  Harp   v.   Parr,    168    111.    459. 
Car.   159.      (In  this  case  the  otlier 


486  LAW    OF    WILLS. 

states  the  will  must  be  proved  de  novo,  and  the  record  of  the 
l^roof  on  probate  is  inadmissible.^^ 

On  contest,  evidence  may  be  taken  by  deposition  in  con- 
formity to  the  general  statutes  on  the  subject. 


50 


§368.     Admissibility  of  will. 

The  will  is  always  admissible  after  due  proof  of  execution, 
and  should  be  introduced  in  evidence.  It  is  provided  in  many 
states  that  a  certified  copy  of  the  will  may  be  introduced  in 
evidence  to  make  a  prima  facie  case.  In  such  case  the  orig- 
inal will  is  also  admissible,  and  it  is  error  to  compel  election 
between  the  original  will  and  the  authenticated  copy.^^ 

Unless  the  statute  provides  that  a  certified  copy  of  the  will 
may  be  introduced  in  evidence,  the  original  will  should  be  of- 
fered in  evidence,  and  a  certified  copy  thereof  is  inadmissi- 
ble.^^ But  where  it  is  not  claimed  that  the  will  is  a  forgery, 
and  contestant  had  the  original,  it  is  harmless  error  to  allow 
proponent  to  introduce  a  certified  copy.^^  And  where  the 
petition  set  out  the  will,  and  alleged  probate,  it  was  held  not 
to  be  reversible  error  to  refuse  to  allow  defendant  to  introduce 
the  will  in  evidence.^"* 

In  ]\Iaryland  the  original  will  must  remain  in  the  custody 
of  the  register,  and  be  produced  at  trial  in  obedience  to  a  suh- 
pena  duces  tecum.  It  is,  therefore,  error  to  order  the  original 
will  to  be  transmitted  to  the  probate  court.^^ 

Under  some  systems  of  foreign  law  the  original  will  must 
be  held  by  the  ofiiccr  before  whom  it  was  executed.  In  such 
case,  if  the  will  is  offered  for  original  probate  in  the  juris- 
diction of  the  domicile  of  such  testator,  it  .has  been  held 
proper  to  permit  a  copy  to  be  offered  in  evidence  and  admitted 
to  probate.^^ 

49  Thomas's  Will,  111  IST.  Car.  54  Kosteleckey  v.  Scherliart,  99 
409.  lo.  120;   68  N.  W.  591. 

50  Schnee  v.  Schnee,  61  Kan.  643;  55  Connelly  v.  Beall,  77  Md.  116. 
60  Pac.  738.  se  Goods    of    Lemme     (1892),    P. 

51  Pratt  V.  Hargreaves,  75  Miss.  89.  (In  this  ease,  under  the  Lim- 
897.  jted    Probate    allowed    in    English 

52  Craig  V.  Southard,   148  111.   37.  law,  the  probate  was  limited  until 

53  Nicewander  v.  Nioewander,  151  the  original  might  be  produced.) 
111.  156:   37  N.  E.  698. 


437 

LAW     OF     WILLS.  ^^' 


§369.     Definition  of  burden  of  proof. 

The  term  ''burden  of  proofs'  is  used  of  every  issue  raised 
in  probate  and  contest,  whether  execution,  mental  capacity, 
undue  influence  or  revocation  is  involved.  The  meaning  of 
the  term  is,  therefore,  properly  discussed  at  the  outset.  "Bur- 
den of  proof"  means  the  necessity  of  maintaining  the  affirm- 
ative side  of  the  issue  by  a  preponderance  of  the  evidence, 
that  is,  by  offering  more  admissible  evidence,  estimated  by 
its  impression  on  the  mind  of  the  tribunal  which  decides  ques- 
tions of  fact,  than  the  adversary  adduces.  If  the  evidence  is 
evenly  balanced,  the  party  upon  whom  the  burden  of  proof 
rests  must  fail.  It  is  in  this  sense  that  this  phrase  is  here 
used.  Another  meaning  given  to  "burden  of  proof,"  by  good 
authority,  is  the  necessity  of  establishing  one's  side  of  the 
issue  prima  facie  in  the  first  instance. 

Ordinarily   there  is  no  inconsistency  between  these  two  defi- 
nitions.    The  party  who  is  bound  to  establish  his  side  of  the 
issue  prima  facie    is  also  bound  to  maintain  the  issue  on  his 
part  by  a  preponderance  of  the  evidence.     But  in  some  classes 
of  cases  special  statutes  direct  specifically  which  party  shall 
open  the  case,  how  far  he  shall  proceed,  and  what  evidence 
on  his  part  shall  make  a  prima  facie  case  for  him.      Such 
statutes  do  not  change  the  pre-existing  rules  as  to  which  party 
must  establish  the  issue  on  his  part  by  a  preponderance  of  the 
evidence,  unless  they  expressly  so  state.     There  is  no  impli- 
cation as  to  the  preponderance  of  the  evidence  to  be  drawn 
from  a  statute  which  merely  directs  the  conduct  of  the  trial. 
In  cases  where  such  statutes  control,  it  is,  therefore,  pos- 
sible for  one  side  to  be  obliged  to  open  and  to  make  out  a 
prima  facie  case,  while  the  other  side  is  bound  to  maintain 
the  issue  on  its  part  by  a  preponderance  of  evidence. 

In  manv  states  proceedings  for  probate  and  contest  of  wills 
are  controlled  by  such  statutes  as  have  been  described.  In 
discussing  upon  which  side  the  burden  of  proof  rests  in  cases, 
the  expression  "burden  of  proof"  will,  as  has  already  been 
stated,  be  used  in  the  sense  of  the  necessity  of  maintaining 
the  issue  by  a  preponderance  of  evidence. 


488  LAW     OF     WILLS. 

It  is  sometimes  said  not  only  in  cases  involving  the  validity 
of  wills,  but  in  cases  of  all  kinds,  that  the  burden  of  proof  shifts 
from  side  to  side  during  the  trial  of  the  case.  With  all  defer- 
ence to  the  authorities  which  use  this  expression,  it  must 
be  either  an  erroneous  statement  of  what  does  actually  happen, 
or  neither  of  the  definitions  of  burden  of  proof  is  the  correct 
one.  The  issues  determine  which  side  is  obliged  to  maintain 
the  issue  by  a  preponderance  of  the  evidence.^ ''^ 

The  general  rules  of  procedure,  or  the  special  statutes  which 
apply  in  the  particular  case,  determine  which  side  must  open 
and  make  out  a  prima  facie  case.  On  neither  of  these  points 
can  there  be  any  change  during  the  progress  of  the  trial. 

When  it  is  said  that  the  burden  of  proof  shifts,  it  is  evi- 
dently another  way  of  saying  that  now  one  side,  and  now  the 
other  has  a  preponderance  of  the  evidence  adduced  up  to  that 
time. 

As  the  phrase  "burden  of  proof"  has  two  meanings  al- 
ready, which  are  to  some  extent  contradictory,  it  is  inadvis- 
able to  add  a  third  meaning  which  is  inconsistent  with  both 
of  the  meanings  already  in  use,  and  which  is  synonomous 
with  the  expression  "preponderance  of  evidence" — a  phrase 
which  has  a  technical  legal  meaning. 

Our  legal  nomenclature  is  defective  enough  arid  possesses 
enough  names  with  two  or  more  meanings,  and  enough 
synonyms  for  the  same  legal  idea,  without  adding  to  the  ex- 
isting confusion  by  mixing  "burden  of  proof"  and  "preponder- 
ance of  evidence"  further. 

As  a  rule,  however,  the  distinction  between  preponderance 
of  evidence  and  the  burden  of  proof  is  a  technical  one.  The 
meaning  of  the  court  will  usually  appear,  whichever  mode  of 

57  "Generally  speaking  the  burden  upon  the  party  asserting  the  affirm- 

of   proof   in   the   sense  of   the   duty  ative    of    the    issue,    and    unless    he 

of   producing   evidence   passes   from  meets  this  obligation  upon  the  whole 

party    to    party    as    the    case    pro-  case,  he  fails.     This  burden  of  proof 

gresses,  while  the  burden  of  proof,  never    shifts    during   the    course    of 

meaning    the    obligation    to    estab-  a   trial,    but   remains   with   him   to 

lish   the   claim   by   a   preponderance  the    end."      Egbers    v.    Egbers,    177 

of   the    evidence,    rests    throughout  111.  82. 


LAW     OF     WILLS.  439 

expression  is  used.     It  is,  therefore,  generally  not  reversible 
error  to  tell  the  jury  that  the  burden  of  proof  shifts.^® 

II— EVIDENCE  OF  EXECUTION. 


§370.     Burden  of  proof. 

The  burden  of  proof  of  the  execution  of  a  will  in  legal 
form  is  upon  the  parties  propounding  such  will  for  probate, 
to  2:)rove  each  fact  necessary  to  a  valid  execution. ^^  This  is 
especially  true  where  there  is  no  attestation  clause.^*^  So 
under  the  English  practice  Avhere  the  attestation  clause  is 
insufficient,  the  will  can  not  be  probated  informally  by  the 
affidavit  of  the  executor,  but  the  witnesses  must  attend  and 
test if y.^^ 

Where  the  law  imposes  the  burden  of  proof  upon  pro- 
ponents on  certain  issues,  and  requires  contestants  to  specify 
the  points  upon  which  tliey  intend  to  rely  in  showing  tliat  the 
purported  will  is  not  the  last  will  and  testament  of  testator, 
the  burden  is  not  removed  from  proponents  by  failure  of  con- 
testants to  attack  the  will  upon  the  issues  upon  which  pro- 
ponents have  the  burden  of  proof.*'-  But  if  contestants  prove 
execution  as  part  of  their  case,  proponents  need  not  offer  evi- 
dence on  that  point. •'^  However,  even  if  contestants  express- 
ly admit  execution,  the  subscribing  witnesses  may  be  called 
to  testify  as  to  execution.^"* 

This  burden  of  proof  is  the  duty  of  establishing  the  facts 
necessary  to  the  validity  of  the  will  by  a  preponderance  of 

58  Slingloff    V.    Bruner,     174    111.  Kennedy   v.   Upshaw,    66   Tex.   442; 

561.  Roberts    v.    Welch,    46    Vt.    164. 

50  Overby  V.  Gordon,  13  App.  D.C.  so  Swain    v.    Edmunds,    54    N.    J. 

392:  Smith  v.  Henline,  174  111.  184;  Eq.  438;  53  N.  J.  Eq.  142. 

Barlow  v.   Waters,   —   Ky.   — ;    28  ei /^  re  Sweet    (1891),  P.  400. 

S.  W.  785;  McFadin  v.  Catron,  120  62  Livingston's   Appeal,    63    Conn. 

Mo.    252;    Gordon    v.    Burris,     141  68;   26  Atl.  470. 

Mo.    602;    Murry    v.    Hennessy,    48  os  Hesterberg    v.    Clark,    166    III. 

Neb.   608;     Seebrock  v.  Fedawa,  ?0  241. 

Neb.    424;    Swain    v.    Edmunds,    54  e*  Commonwealth     v.      McCarthy, 

N.   .J.    Eq.   438;    53   N.   J.   Eq.    142;  119  Mass.  354. 
Thomas's    Will,    111    N.    Car.    409; 


440  LAW    OF    WILLS. 

evidence.  Accordingly  it  is  error  to  charge  the  jury  that 
if  there  is  a  doubt  in  their  minds  as  to  the  validity  of  the 
will    they  must  find  against  the  will.*^^ 

Where  the  will  is  claimed  b}  contestants  to  be  a  forgery,  it 
is  unquestionably  not  necessary  to  establish  the  criminal  act 
in  the  proceeding  in  contest  beyond  a  reasonable  doubt.®*^ 

It  is  sometimes  said  that  the  burden  of  proof  may  be  increased 
by  circumstances,  as  where  a  testator  was  accustomed  to  write 
his  name  in  full,  and  after  his  death  a  will  was  offered  for 
probate  signed  by  a  mark  and  witnessed  by  two  relatives  of 
the  beneficiaries.^^  In  other  jurisdictions  this  same  idea  would 
probably  be  expressed  by  saying  that  .evidence  which  on  iU 
face  suggested  fraud  would  not,  unsupported,  amount  to  a  pre- 
ponderance in  favor  of  proponents.  The  case  given  is  rather 
one  of  failure  of  evidence  than  of  increase  in  burden  of  proof. 

§371.     Presumption  where  signatures  of  testator  and  subscrib- 
ing witnesses  are  duly  proved. 

In  their  duty  of  establishing  the  facts  essential  to  the 
validity  of  the  will  by  a  preponderance  of  the  evidence,  pro- 
ponents are,  however,  not  obliged  in  all  cases  to  prove  each 
fact  by  direct  evidence ;  but  they  may  rely  upon  presmnp- 
tions.  There  is,  at  the  outset,  no  presumption  that  the  al- 
leged testator  executed  the  will  in  question  or  any  will.  But 
"when  a  paper  propounded  as  a  will  is  sho\^^l  to  have  been 
signed  by  the  alleged  testator  and  the  requisite  number  of 
witnesses,  in  the  absence  of  any  satisfactory  evidence  to  the 
contrary  the  presumption  is  that  all  the  formalities  have 
been   complied   with."  '^^ 

This  presumption,  as  has  been  said  before,  is  especially 
strong  where  the  attestation  clause  is  perfect,  and  recites  the 
performance  of  all  the  facts  necessary  to  the  validity  of  the 

65  Brown  v.  Walker,  —  Miss.  — ;  67  Donnelly  v.  Broughton  (1801), 
11  So.  724.  App.    Cas.    435. 

66  McDonald  v.  McDonald,  142  68  [n  re  Brock,  37  S.  Car.  348; 
Ind.  55.  16  S.  E.  38. 


441 

LAW     OF     WILLS. 

will«^  although  the  presence  of  an  attestation  clause  does 
not  'dispense  with  direct  evidence  of  the  facts  of  execution 
where  this  is  availableJ^  But  where  the  will  recites  that 
certain  acts  were  done,  and  omits  certain  essential  facts,  there 
is  no  presumption  that  these  omitted  facts  were  done.^^ 

§372.     Presumption  where  subscribing  witness  forgets  facts  of 
execution. 

It  is  not  necessary  to  interrogate  each  subscribing  witness 
upon  all  of  the  requisite  elements  of  the  will.  It  is  sufficient 
where  all  are  called,  if  their  evidence  put  together  establishes 
the  requisite  facts.'^^ 

In  view  of  the  principles  already  laid  down  it  is  evident 
that  the  forgetfulness  of  the  accessible  subscribing  witness,  as 
to  certain  necessary  facts  of  execution,  does  not  avoid  the 
prima  facie  case  made  out  by  proof  of  the  genuineness  of  the 
signatures  of  testator  and  the  subscribing  witnesses.^=^  So, 
where  the  subscribing  witnesses  identify  their  signatures,  but 
have  no  recollection  of  having  attested  the  instrument,  or  of 
the  circumstances  of  execution,  the  presumption  that  it  was 
properly  executed  will  uphold  it  in  the  absence  of  clear  and 
satisfactory  proof  to  the  contrary.^'^     Thus,  where  the  accessi- 

69Hobart  V.  Hobart,  154  111.  610,  73  Tyler's    Estate,    121    Cal.    405; 

affirming   53   111.   App.    133;    Farley  53  Pac.  928;  Gillis  v.  Gillis,  96  Ga. 

V    Farley,   50  N.  J.   Eq.   434;    Tap-  1;    Canatsey   v.    Canatsey,    130    111. 

pen  V.  Davidson,  12  C.  E.  Gr.  459;  397;    Slingloff    v.    Bruner,    174    111. 

Barnes  V.  Barnes,  66  Me.  286;  Car-  561;     Hobart    v.    Hobart,    1.54    111. 

penter   v.   Denoon,   29   O.   S.   379.  610;    Nickerson  v.   Buck,    12   Gush. 

ToEaleigh,  etc.,  Rv.  Co.  v.  Glen-  (Mass.),  3.32;  In  re  Kellum,  52  N. 

don,    etc.,    Co.,    113^  K    Car.    241.  Y.  517 ;  /n  re  Hunt.  110  N.  Y.  2/8; 

(Thus   in  a  foreign  will  either  the  Luper  v.  Werts,   19   Ore.   122;   hul- 

foreign    certificate    of    probate,    or  livan's  Will,   114  Mich.  189;   Abbot 

the  evidence  of  the  subscribing  wit-  v.  Abbot,  41   Mich.   540;     Gable    v. 

nesses  was  held  necessary  to  estab-  Eauch,    50    S.    Car.    95;    2/     S.    K 

lish  the  validity  of  the  will.)  555;   Welch  v.  Welch,   9  Rich.    (S 

71  Swain    V.    Edmunds,    54    N.    J.  Car.),    133;    Will    of    O'Hagan,    /3 
Eq.  438 ;   53  N.  J.  Eq.  142.          -  Wis.  78. 

72  Welch   V.    Welch,    9    Rich.    (S.  74  Will  of  O'Hagan,   73  Wis.   78; 
Car.),  133;  Kaufman  v.  Caughman, .  In  re  Hunt,  110  N.  Y.  2^8. 

49    S.   Car.   159. 


442  LAW     OF     WILLS. 

ble  subscribing  witness  testiiied  that  she  signed  as  witness  in 
the  presence  of  testator  and  at  his  request,  but  could  not  re- 
member that  she  saw  the  signature  of  testator,  it  was  held  to 
make  out  a  prima  facie  case  for  the  validity  of  the  will."^ 

Where  one  of  the  subscribing  witnesses  did  not  remember 
seeing  the  signature  of  testatrix  upon  the  will  when  he  signed, 
but  did  remember  that  he  signed  below  the  other  witness,  and 
the  other  witness  testified  that  he  was  requested  by  testatrix 
to  sign  below  her  signature,  and  that  there  was  a  signature 
to  the  will  before  he  signed,  it  was  held  error  to  take  the 
case  from  the  juryJ® 

§373.    Presumption  where  subscribing  witness  is  beyond  the  juris- 
diction of  court. 

If  one  or  more  of  the  subscribing  witnesses  to  a  will  are 
dead,  or  absent  from  the  jurisdiction  of  the  court  before 
which  the  will  is  offered  for  j^robatc,  proof  of  the  genuine- 
ness of  the  sigiiatures  of  such  attesting  winesses  and  of  tes- 
tator is  sufficient,  with  the  aid  of  this  presumption  that  the 
remaining  acts  were  jn-operly  done,  to  establish  the  validity 
of  the  will."^^ 

The  same  rule  applies  where  one  of  the  subscribing  wit- 
nesses is  dead  or  beyond  the  jurisdiction  of  the  court,  and 
the  rest  do  not  remember  the  facts  of  execution.  Proof  of 
the  genuineness  of  the  signatures  of  testator  and  the  witnesses 
will,  with  the  aid  of  the  presumption  under  discussion,  estab- 
lish the  validity  of  the  will."^ 

This  legal  presumption  is,  of  course,  greatly  aided  by  .the 
direct  testimony  of  such  subscribing  witnesses  as  can  be  pro- 
duced at  probate,  or  whose  evidence  can  be  taken  by  deposi- 
ts Hobart  V.  Hobart,  154  111.  610.  Hawk,  107  To.  723;  Allison's  Estate, 
76Laudy's  Will,  161  N.  Y.  429;  104  lo.  130;  73  N.  W.  489;  Nicker- 
so  Gwillim  V.  Gwillim,  3  Sw.  &  Tr.  son  v.  Buck,  12  Gush.  332;  Sulli- 
200;  29  L.  J.  P.  31.  van's  Will,  114  Mich.  189;  Jackson 

77  Earnewall  v.  Murrell,  108  Ala.       v.    Van    Dusen,    5   Johns.    (N".    Y.), 
366;   Robinson  v.  Brewster,   140  111.       144. 

649;  Hobart  V.  Hobart,  1,54  111.  610:  78  Tyler's    Estate,    121    Cal.    405; 

Taylor  v.  Cox,  153  111.  220;  Scott  v.       SlinHoff  v.   Bruner.   174   111.   561. 


443 

LAW    OF    WILLS. 


tion,  that  the  acts  necessary  to  a  legal  execution  actually  too. 
nlace  Uuder  these  circumstances  a  will  may  be  admitted  to 
probate  upon  such  evidence."  This  presumption  obtains  even 
vhere  th  deposition  of  such  absent  subscribing  witness  has 
teen  taken  olitside  the  jurisdiction  of  the  probate  court  on 
Other  issues.^*^ 

§374.     Presumption  where  subscribing  witness  denies  facts  of 
execution. 
Even  where  a  subscribing  witness  denies  the  existence  of 
certain  facts  necessary  for  the  legal  execution  of  the  will,  the 
maxim   "omrda  praesumuntur   rite   acta"   may   prevail   over 
such  direct  evidence.     The  subscribing  witness,  by  acting  as 
such   in  eftect  formally  declares  that  all  the  facts  necessary  tx> 
the  leo-al  execution  of  the  will  exist,  and  he  has  in  advance 
seriously  discredited  his  subsequent  denial  of  these  facts  under 
oath      The  presumption  of  the  performance  of  the  necessary 
acts'mav,  therefore,  not  be  overcome  by  such  adverse  tesi- 
mony,«^^and  a  will  may  be  admitted  to  probate,  though  the 
subscribing  witnesses  testify   adversely  thereto. 

The  subscribing  witnesses  are  especially  discredited  where 
they  testify  in  favor  of  the  will  at  probate  and  against  it_  at 
contest  ;«^  or  where  they  hesitate  and  evade  before  denying 
the  validity  of  the  execution  of  the  will.^^ 

§375.     Presumption  from  character  of  scrivener   who  supervised 

execution. 

Evidence  that  the  will  was  drawn  and  the  execution  super- 

79  (Jones's  Will),  Jones  V.  Jones,  -Mays    v.    Mays,    114    Mo^  536 

.Jr       TJ  (issue  of  sanity)  ;    Orser  v.  Orser, 

96  Wis.  42/.                    T^,    T.     T^o-  94   N    Y.   51;    Loughney  v.   Lough- 

so  Allison's   Estate,    104   lo.    130.  -4^N^_  ^^j^^^  ^^^^^^^^^^^  ^^^._ 

73  N.  W.  489.  .                              25  N.  Y.  422. 

81  Dayman    v.    Dajonan,    t\    Law  "^'-^    .                        ^          ,,oqqx     a 

T.   699;   Gillis  v.  Gillis,  96  Ga.   1;  ^J^f  ^^^^  ^^  ^^^  ''^''l\t, 

Gwin  V.  Gwin   (Ida.) ,  48  Pac.  295 ;  C.   ^^l  =     68  K   -I-  R  C.  ^^ 

Bei-nsee'B  Will,  141  N.  Y.  389  ;  Orser  ^^-^  J^^^^  w  H    Ul  N    Y.   389. 

V.  Orser,  24  N.  Y.  51 ;  In  re  Stacey.  «^  Bernsee  s  Will, 

6  Ohio  Dec.  499;    Rice's  Estate,  1.3 


Pa.  St.  298. 


444  LAW     OF    WILLS. 

vised  by  one  who  was  exj^erienced  in  sncli  subjects  is  com- 
petent, as  a  presumption  of  fact  may  thereupon  arise  that 
the  execution  was  properly  accomplished.^^  Evidence  that 
testator  himself  was  an  experienced  lawyer  is  also  admissible 
to  raise  this  presumiition.*''^  This  evidence  is,  of  course,  not 
conclusive  as  to  due  execution. ^^ 

§376,     Declarations  of  testator Res  gestae. 

The  ordinary  rule  is  that  the  declarations  of  a  testator  are 
admissible  only  when  they  are  contemporaneous  with  and 
explanatory  of  the  facts  of  execution.**  It  is  a  little  difficult 
to  tell  exactly  what  declarations  are  so"  contemporaneous  as 
to  be  admissible  under  the  res  gestae  rule  and  what  are  not. 
Declarations  of  testator  at  execution  that  he  had  heard  the 
will  read  to  him  upon  a  previous  occasion  are  admissible  to 
show  that  he  was  ac(iuainted  with  its  contents.*^  Thus,  the 
declarations  of  testator  to  his  attorney  that  the  specific  paper 
was  his  will    were  held  admissible.*^^ 

In  an  extreme  case  declarations  of  testator  before  the  ex- 
ecution of  the  will  made  to  his  son  who  brought  the  attorney 
to  draft  the  will,  and  declarations  made  to  such  son  imme- 
diately after  the  execution  of  the  will  in  the  son's  absence, 
were  held  sufficient  to  establish  due  execution.^^ 

Testator's  declarations  to  subscribing  witnesses  at  execu- 
tion that  the  will  was  his,  and  that  he  had  fully  witnessed 
it,  constitute  some  evidence  that  his  name  was  written  by 
another  in  his  presence  and  at  his  request,  where  it  was  shown 
that  he  did  not  sign  it  himself.^^ 

85  Sullivan's  Will,  114  Mich.  ss  Walton  v.  Kendrick,  122  Mo. 
189;  Nelson's  Will,  141  jST.  Y.  152;  504;  Waterman  v.  Whitney,  11  N. 
Gable   v.    Ranch,     50     S.     Car.     95.       Y.    157;    Gordon's    Will,    50    N.    J. 

(Where  the  scrivener,  who  was  also  Eq.    397. 

attesting  witness,  had  been  probate  89  McCommon  v.  McCommon,   151 

judge  for  twelve  years.)  III.  428. 

86  Stewart   v.    Stewart,    56   N.   J.  so  Scott  v.  Hawk,  107  lo.  723. 
Eq.   761 ;   Nelson's   Will,   141   N.  Y.  9i  Scott's  Estate,   147   Pa.   St.  89. 
152.  92  Walton    v.    Kendrick,    122    Mo. 

87  Purdy's  Will,  25  Misc.   (N.  Y.),  504:   25  L.  R.  A.  701. 
458 :  55  N.  Y.  Supp.  644. 


LAW     OF     WILLS. 


445 


§377.     Declarations  of  testator. — Not  res  gestae. 

The  great  weight  of  authority  is  that  declarations  made  at 
any  period  of  time  after  execution,  no  matter  how  short,  are 
narratives  of  past  events,  and  are  inadmissible  to  establish 
due  execution.^^  Thus,  declarations  by  testator  that  he  had 
not  made  a  will  are  inadmissible  to  show  that  the  will  offered 
for  probate  was  a  forgery.^^  So,  declarations  of  testator 
made  before  the  execution  of  the  will,  as  to  his  intentions,  are 
inadmissible  upon  the  question  of  the  execution  of  the  will.^^ 
But  testator's  declarations  that  he  had  made  a  will  have  been 
held  admissible  to  corroborate  other  testimony  to  that  effect.^° 

The  declarations  of  testator  are  admissible  to  show  the 
genuineness  of  his  handwriting,  but  not  as  to  his  intention.^^ 
Since  declarations  are  usually  admissible  to  show  mental  con- 
dition and  states  of  feeling,  testator's  declarations  made  af- 
ter execution  are  admissible  to  show  that  he  knew  that  the 
instrument  which  he  was  executing  was  a  will.^^ 

§378.     Expert  evidence. 

The  opinions  of  experts  in  handwriting  are  admissible 
upon  questions  of  the  genuineness  of  the  signatures  to  the 
will.^^  So  are  the  opinions  of  persons  who,  though  not  ex- 
perts,   are   familiar   with    the   handwriting    in    dispute.^  °^ 

Papers  admitted  or  proven  to  be  the  genuine  handwriting 
of  the  person  whose  handwriting  is  in  dispute  are  also  ad- 
missible as  standards  of  comparison.^ *^^ 

93  Leslie  v.  McMurty,  GO  Ark.  on  Lane  v.  Hill,  68  N.  H.  275 ; 
301  ;    Walton   v.   Kendrick,    122   Mo.       44  Atl.   393. 

504;   Wells  v.  Wells,   144  Mo.   198;  97  Morvant's    Succession,    45    La. 

Gordon's  Will,  50  N.  J.  Eq.  397.  Ann.   207. 

94  Leslie  v.  McMuity,  60  Ark.  98  Nelson's  Will,  141  N.  Y.  152; 
301;  Wells  v.  Wells,  144  Mo.  198.  Sullivan's  Will,  114  Mich.  189. 
But  in  Risse  v.  Gasch,  43  Neb.  287,  99  Clark  v.  Ellis,  28  S.  W.  (Ky.) 
testator's  declarations  that  he  had  148;  Berg's  Estate,  173  Pa.  St.  647. 
not  made  a  will  were  put  in  evi-  For  a  general  discussion  of  what 
dence;    and  the   Supreme  Court  re-  an  expert  is,  see   Sec.  389. 

fused   to   disturb   the   verdict.    _  loo  Berg's     Estate,     173     Pa.     St. 

95  Throckmorton  v.  Holt,  12  App.       647. 

D.  C.  552;   Swope  v.  Donnelly,   190  loi  Clark   v.   Ellis,  — Ky.  — ;    28 

Pa.   St.  417;   42  Atl.  882.  S.  W.   148. 


446  LAW     OF     WILLS. 

The  opinions  of  experts,  adverse  to  the  genuineness  of  the 
signatures,  are,  however,  of  little  weight  in  comparison  with 
the  direct  evidence  of  persons  present  at  the  execution  of  the 
will,^°^  unless  they  are  fortified  and  strengthened  by  other 
suspicious  circumstances.  Thus,  where  the  will  was  suppressed 
until  after  the  death  of  the  onlv  subscribing  witness  who  was 
unbiased,  this  fact,  together  with  testimony  of  experts  adverse 
to  the  genuineness  of  the  signatures,  was  held  sufficient  evi- 
dence on  which  to  find  against  the  will,  though  the  other  sub- 
scribing witness,  a  son  of  the  chief  beneficiary,  testified  to 
its  genuineness.^  ^^ 

§379.     Evidence  negativing  execution. 

Evidence  tending  to  show  that  the  will  was  not,  and  could 
not  have  been,  executed  as  alleged  is  admissible.  Thus,  evi- 
dence is  admissible  that  testator,^'''*  or  one  of  the  alleged  sub- 
scribing witnesses,^  "^^  was  not  present  at  the  time  and  place 
of  the  alleged  execution  of  the  will. 

The  fact  that  the  sigTiature  appended  to  the  will  is  in  sub- 
stantially different  form  from  the  usual  signature  of  testator 
is  a  circumstance  to  be  considered  in  determining  the  genuine- 
ness of  snch  signature.-^ °^ 

Where  the  subscribing  witnesses  make  out  a  pinma  facie 
case  of  due  execution,  this  is  not  rebutted  by  the  evidence  of 
one  of  the  subscribing  witnesses  who  testifies  that  he  thoughu 
that  the  will  was  written  on  a  differently  shaped  piece  of  pa- 
per from  that  which  was  offered  for  probate  as  the  will.^^''' 
So  the  mere  fact  that  the  will  was  written  on  two  pieces  of 
paper,  so  pasted  together  that  the  execution  clause  was  en- 
tirely on  one  sheet,^^^  or  the  fact  that  the  signature  of  tes- 

102  Conway  v.  Ewald.  —  (N.  J.  lofi  Risse  v.  Gascli,  43  Xeb.  287. 
Prer.),  — ;  42  Atl.  338;  Douglass's  io7  Harp  v.  Parr,  168  111.  459. 
Estate,  162  Pa.  St.  567;  29  Atl.  (On  this  point  he  was  contradicted 
715.  by  the  scrivener  and  the  other  sub- 

103  Clark  v.  Ellis,  —  Ky.  — ;   28  scribing  witness.) 

S.   W.    148.  108  Lamb  V.  Lippencott,  115  Mich. 

104  Risse   V.   Gasch,   43   Neb.   287.       611;  73  X.  W.  887. 

105  Barbour    v.    Moore,    10    App. 
D.   C.    30. 


447 

LAW    OF    WILLS. 


tator  was  in  ink  of  a  different  kind  from  tliat  in  wind,  the 
bX  of  the  will  was  .vritten"^  were  each  held  .nsnfcc.ent 
Jttablish  forgery.  So,  where  the  only  evidence  tnoppos- 
tion  to  the  prima  facie,  case  made  out  by  proof  of  the  hand 
w  ing  is  that  of  one  witness  who  admits  that  the  signature 
Resembled  that  of  testatrix,  bnt  that  it  was  -^  l^ers  "becanse 
Ihenever  wanted  to  make  snch  a  will,"  it  was  held  that  there 
was  nothing  to  go  to  the  jury.^'° 

§380.     Evidence  of  animus  testandi. 

Where  it  is  show  that  testator  signed  the  will,  it  is  pnm» 

facie  evidence  that  he  signed  it  nnderstandmgly.         Where 

he  instnnnent  is  regular  in  form,  and  testamentary  »  o.- 

Lssion    it  requires  the  clearest  and  most  convincing  evidence 

tosh"  that  it  was  not  executed  by  testator  with  testamentary 

intent  ^^^ 

In  order  to  show  the  anhnus  testandi    it  is  not  necessary 
to  show  that  the  testator  actually  read  the  will -^  ^  ^or  where 
he  is  illiterate  is  it  necessary  to  show  that  the  will  was  read 
to  him^^^      Even   where  the   desire   of   testator  would   have 
originallv   violated   the   rule   against   perpetuities     and   when 
thi^  was"  explained  to  him    he  asked  that  the  wdl  be  drawn 
as  near  his  original  wish  as  could  be  done  under  the  law,  it 
was  held  unnecessary  to  show  that  the  will  as  finally  drawn 
was,  in  fact,  read  over  to  testator.-^     But  where  the  evidence 
disclosed  that  the  will    as  dra^vn    was  in  partial  disregard  of 
tie  expressed  wishes  of  testatrix,  and  it  was  never  read  over 

xoo  Davis  V.  Elliott,  55  N.  J.  Eq.  -3  Walton  v.   Kendrick,    122   Mo. 

473;    36   Atl.   1092.      (In   this   case  504;    Boehm  v.   Kress,   179   Pa.   St. 

the   evidence   tended    to    show    that  386. 

while    there    were     several     bottles  ^^*  ^^^--^  ^- ^^•"'  f^^'"^'  f,'" 

of   ink    on   the   table   only   one   pen  "-^^  Sheer   v.    Sheer,    159    II.    59 

and ^nd  of  ink  were  used.)  (The   scrivener   who   drew   the   w.U 

no  Berg's    Estate,     173    Pa.     St.  testified:      "I   drew  it  as  near  hke 

^  ^  Ms   directions   as   it   could   be   done 

"'L  Sheer   v     Sheer,    159    111.    591.  under    the   law";    and   no   evidence 

1X2  Sullivan's     Will,      lU     Mich.  contradicted  this.) 
189;    Boehm  V.  Kress,   179   Pa.   St. 
386. 


448  LAW    OF    WILLS. 

to  her  in  its  final  form,  it  was  held  that  the  j)resumption  of 
the  animus  testandi  was  rebutted.^  ^^ 

The  statement  of  a  subscribing  witness  that  testator  knew 
what  he  was  about  is  not  sufficient  where  the  evidence  shows 
that  testator  did  not  recognize  anyone  and  was  unconscious.^  ^"^ 

§381.     Questions  of  law  and  fact. 

What  facts  are  necessary  to  the  due  execution  of  a  will  is 
a  question  of  law  to  be  determined  by  the  court.^^^  Whether 
in  the  particular  case  these  facts  exist,  is  a  question  of  fact 
peculiarly  for  the  tribunal  which  is  to  decide  the  facts, 
whether  that  is  the  jury  or  the  court. 

Ill— EVIDENCE  OF  INCAPACITY 


§382.     Burden  of  proof. 

Upon  the  question  of  whether  the  proponent  of  the  will — 
the  party  who  contends  that  the  will  is  valid,  or  the  con- 
testant— the  party  who  contends  that  the  will  is  not  valid,  has 
the  burden  of  jDroof  upon  the  question  of  mental  capacity,  the 
courts  are  hopelessly  divided.  The  weight  of  authority  seems 
to  be  that  the  burden  of  proof  is  upon  the  party  alleging  in- 
capacity; that  is,  upon  the  contestant.^ ^'^ 

iieWaite    v.     Frisbie,    45     Minn.  Helm,  2  Marv.    (Del.),  237;    Smith 

301.  V.  Day    (Del.),  45  Atl.  396;   Blough 

1"  Chappell  V.  Trent,  90  Va.  849.  v.   Parry,    144   Ind.   463,   disapprov- 

iisHarp    V.    Parr,    168    111.    459;  ing  Durham  v.  Smith,  120  Ind.  463, 

Bramel    v.    Bramel,   —   Ky.   — ;    39  overruling   Kenworthy  v.    Williams, 

S.  W.  520.  5   Ind.    375;    Young   v.    Miller,    145 

119  Barnewall  v.  Murrell,  108  Ala.  Ind.   652 ;    Turner  v.   Cook,   36   Ind. 

366;  Eastis  v.  Montgomery,  95  Ala.  129;    Moore   v.   Allen,   5    Ind.    521; 

486;    Knox   v.   Knox,   95   Ala.   495;  Blake  v.  Rourke,  74  lo.  519;  Boone 

Daniel  v.  Hill,  52  Ala.  430;   Stubbs  v.    Ritchie     (Ky.),    53    S.    W.    518; 

V.    Houston,    33    Ala.    555,    overrul-  King  v.  King   (Ky.),  42  S.  W.  347; 

ing    Dunlap    v.    Robinson,    28    Ala.  Howat  v.   Howat    (Ky.),  41    S.   W. 

100;     McCulloch    v.    Campbell,    49  771  ;  Barnes  v.  Barnes,  66  Me.  286; 

Ark.  367  :  Jenkins  v.  Tobin,  31  Ark.  Tyson  v.  Tyson,   37  Md.  567 ;   Hig- 

306;    Scott's     Estate,    —    Cal.     —  gins  v.   Carlton.   28   Md.   115;    Carl 

(1900),    60    Pac.     527;      Steele     v.  v.    Gabel,    120    Mo.    283;    Payne   v. 


LAW     OF     WILLS. 


449 


Where  this  is  the  rule  the  verdict  must  be  in  favor  of  pro- 
ponents, if  the  evidence  adduced  is  so  evenly  balanced  that 
there  can  not  be  said  to  be  a  preponderance  either  way.^^*^ 
This  is  the  rule  even  where  the  testator  was  a  monomaniac. 
The  burden  of  proof  is  on  the  party  alleging  incapacity  to 
show  that  the  will  was  affected  thereby.-^ -^  The  burden  of  proof 
is  on  contestants  to  establish  incapacity  of  permanent  type  be- 
fore jjroponent  could.be  called  upon  to  show  that  the  will  was 
made  in  a  lucid  interval.^ "^  . 

A  very  large  and  respectable  minority  of  the  courts,  however, 
take  the  position  that  the  party  propounding  the  will  has  the 
burden  of  proof  as  to  every  fact  necessary  to  the  validity  of 
the  will,  including  the  mental  capacity  of  the  testator.^ -^ 

The  reason  given  for  this  view  is  not  without  force.  It  is 
that  the  right  to  make  a  will,  of  real  estate  at  least,  is  not  a 


Banks,  32  Miss.  292;  Sheelian  v. 
Kearney,  —  Miss.  — ;  21  So.  41; 
Perkins  v.  Perkins,  39  N.  H.  163; 
In  re  Burn's  Will,  121  N.  Car. 
336;  McCoon  v.  Allen,  45  N.  J. 
Eq.  708;  Elkinton  v.  Brick,  44 
N.  J.  Eq.  154;  Harris  v.  Van- 
derveer,  21  N.  J.  Eq.  561 ; 
Sanderson  v.  Sanderson,  52  N.  J. 
Eq.  243;  Delafield  v.  Parish,  25  N. 
Y.  9;  Howard  v.  Moot,  64  N.  Y. 
262;  Messner  v.  Elliott,  184  Pa.  St. 
41 ;  Linton's  Appeal,  104  Pa.  St. 
228;  Grubbs  v.  McDonald,  91  Pa. 
St.  236;  Egbert  V.  Egbert,  78  Pa. 
St.  326;  Bartee  v.  Thompson,  8 
Baxt.  (Tenn.),  508;  Key  v.  Hol- 
loway,  7  Baxt.  (Tenn.),  575; 
Burton  v.  Scott,  3  Rand.  (Va.), 
399;   Allen  v.  Griffin,  69  Wis.  529. 

120  Roller  V.  Kling,   150  Ind.   159. 

121  Young  V.  Miller,  145  Ind.  652 ; 
Edwards  v.  Davis,  30  Weekly  Law 
Bull.  283;  Taylor  v.  Trich,  165  Pa. 
St.  586. 

i22Murphree  v.  Senn,  107  Ala.- 
424;  O'Donnell  v.  Rodiger,  76  Ala. 
222;  Henry  v.  Hall.  106  Ala.  84. 

123  Harrison's  Will,  30  N.  B.  164; 


Livingstone's  Appeal,  63  Conn.  68 ; 
In  re  Barber's  Estate,  63  Conn.  393 ; 
Comstock  V.  Society,  8  Conn.  254 : 
Evans  v.  Arnold,  52  Ga.  169;  John- 
ston V.  Stevens  (Ky.),  23  S.  W. 
957;  Baldwin  v.  Parker,  99  Mass. 
79  ;  Crowninshield  v.  Crowninshield, 
2  Gray  (Mass.),  524;  Baxter  v. 
Abbott,  7  Gray  (Mass.),  71;  Hall 
V.  Perry,  87  Me.  569 ;  In  re  Thomp- 
son, 92  Me.  563;  Moriarity  v.  Mo- 
riarity,  108  Mich.  249;  Prentis  v. 
Bates,  93  Mich.  234,  overruling 
same  case,  88  Mich.  567;  Taff  v. 
Hosmer,  14  Mich.  309;  In  re  Lay- 
man's Will,  40  Minn.  371 ;  Mad- 
dox  V.  Maddox,  114  Mo.  35;  Nor- 
ton V.  Paxton,  110  Mo.  456;  Patten 
V.  Cilley,  67  N.  H.  520;  Hardy  v. 
Merrill,  56  N".  H.  227;  Murry  v. 
Hennessey,  48  Neb.  608 ;  Seebrock 
V.  Fedawa,  30  Neb.  424;  Hubbard  v. 
Hubbard,  7  Ore.  42,  Chrisman  v. 
Chrisman,  16  Oreg.  127;  Williams 
V.  Robinson,  42  Vt.  658 ;  In  re  Bald- 
win's Estate,  13  Wash.  666;  Me- 
Mechen  v.  McMechen,  17  W.  Va. 
.683. 


450  LAW     OF    WILLS. 

common  law  right,  but  depends  npon  the  statute  in  deroga- 
tion of  the  common  law ;  that  a  will  to  be  valid  must  be  proved 
to  be  within  the  terms  of  this  statute,  and  that  as  one  of  the 
requisites  of  the  statute  is  that  the  testator  must  be  of  sound 
mind,  tlie  proponent  of  the  will  has  the  duty  of  maintaining 
the  issue  on  this  fact  by  a  preponderance  of  evidence.-^  ^"^ 
Thus,  where  this  rule  is  in  force  it  is  reversible  error  for  the 
trial  court  to  place  the  burden  of  proof  upon  contestants  by 
charging  "if  there  is  more  of  the  evidence  ...  on  the  side 
of  the  contestants  .  .  .  the  will  ought  to  be  overruled."  ^^^ 

In  other  jurisdictions  the  rule  is  expressed  as  follows:  It 
is  incumbent  upon  the  proponents  of  the  will  to  make  a  prima 
facie  case  by  the  evidence  of  the  subscribing  witnesses  of  all 
the  requisites  of  a  valid  will,  including  the  capacity  of  the 
testator.  After  proponents  have  made  out  such  prima  facie 
case,  contestants  must  overcome  this  pritna  facie  showing  by 
substantial  evidence  ;^^^  or,  as  is  said  in  other  jurisdictions, 
by  a  preponderance  of  the  evidence.^ ^'^ 

Or  it  is  sometimes  said  that  the  burden  of  making  out  a 
prima  facie  case  is  upon  the  proponents  in  the  first  instance, 
but  that  when  they  have  done  this  by  means  of  the  evidence  of 
the  subscribing  witnesses,  the  burden  of  j)roof  is  upon  con- 
testants to  show  lack  of  capacity.^  ^^ 


124  Crowninshield       v.       Crownin-  125  Moriarity    v.    Moriarity,     108 

shield,  2  Gray    (Mass.),  524;   Bald-  Mich.  249. 

win  V.   Parker  99  Mass.  79;   In  re  126  Barber's  Estate,  63  Conn.  393: 

Baldwin's    Estate,    13    Wash.    666;  22  L.  R.  A.  90;   Fulbright  v.  Perry 

McMechen  v.  McMechen,  17  W.  Va.  County,  145  Mo.  432. 

683.  12-  Smith  v.  Henline,  174  111.  184 

"The  general  rule  that  all  persons  Craig    v.    Southard,    162    111.    209 

are    presumed    sane   until    the    con-  Graybeal  v.   Gardner,   146  111.   337 

trary    appears  .  .  .  does    not   apply  Taylor  v.  Cox,  153  III.  220;  Bevelot 

in  cases  of  this  kind.     There  must  v.   Lestrade,    153   111.   625 ;    Pendlay 

be    sufficient   proof   to   make   out   a  v.   Eaton,   130  111.   69;    Hawkins  v. 

prima   facie   case   of   the   sanity   of  Grimes,  13  B.  Mon.   (Ky. ),  257. 

testator    at    the    time    the    will    is  12s  Hollenbeck    v.    Cook,    180    111. 

made   as   one   of   the   jurisdictional  65;    Egbers  v.   Egbers,   177    111.  82. 
facts."     In  re  Baldwin's  Estate,  13 
Wash.     666. 


1,AW     OF    WILLS. 


451 


In    Canada   the   bnrden    rests   npon    proponent,    if   he   was 
active  in  procuring  the  execution  of  the  will.^-^ 


§383.     Presumption  of  sanity. 

In  most  cases  there  is  a  presumption  tliat  any  person 
whose  capacity  is  under  discussion  is  sane.  The  weight  of 
authority  is  that  this  presumption  obtains  in  cases  involving 
the  validity  of  wills,  and  that  the  testator  is  always  presumed 
sane  until  evidence  discloses  the  contrary  state  of  miiid.^^" 
It  is,  accordingly,  proper  to  charge  the  jury  that  if  the  other 
evidence  is  equally  balanced  the  presumption  of  sanity  has 
probative  force  enough  to  turn  the  scale  in  favor  of  the 
will,^^^  and  it  is  error  to  refuse  to  charge  that  "every  person  is 
bf  sound  mind  until  the  contrary  is  shown."  ^^^ 

This  presumption  is  not,  of  course,  conclusive.  It  is  at 
the  utmost  a  prima  facie  presumption  of  law,  liable  to  be  re- 
butted by  evidence. 

In  other  jurisdictions  it  is  said  that  there  is  no  presump- 
tion of  sanity.^ "2     wi^ie  the  rules  as  to  presumption  of  sanity 


129  Currie  v.  Currie,  24  Can.  S.  C. 
712.  And  a  similar  view  is  ex- 
pressed in  Hegney  v.  Head,  126 
Mo.  619. 

130  Barnewall  v.  Murrell,  108 
Ala.  366;  In  re  Barber's  Estate,  63 
Conn.  393;  Sturdevant's  Appeal,  71 
Conn.  393;  Ethridge  v.  Bennett,  9 
Houst.  (Del.),  295;  Craig  v.  South- 
ard, 162  111.  209;  Blough  v.  Parry, 
144  Ind.  463;  Mayo  v.  .Tones,  78  N. 
Car.  402 ;  Perking  v.  Perkins,  39  N. 
H.  163;  Delafield  v.  Parish,  25  N. 
Y.  9;  Messner  v.  Elliott,  184  Pa. 
St.  41 ;  Grubbs  v.  McDonald,  91  Pa. 
St.  236 ;  Newhard  v.  Yundt,  132  Pa. 
St.  324;  Dean  v.  Dean,  27  Vt.  746. 
"When  proponent  proves  the  formal 
execution  of  a  will,  including  the 
attestation  and  subscription  of  the 
witnesses  as  required  by  law,  a 
presumption  of  testamentary  ca- 
pacity arises,  since  every  adult  is 
presumed  to  be  sane  until  the  con- 
trary appears,   and  since  witnesses, 


when  they  attest  and  subscribe  a 
Avill  as  such,  not  only  attest  the 
fact  of  the  testator's  signing,  but 
also  the'  testator's  sanity."  Kauf- 
man V.   Caughman,  49   S.   Car.   159. 

131  Sturdevant's  Appeal,  71  Conn. 
393.  In  this  case  the  court  said: 
"The  presumption  of  sanity  is  not 
in  itself  evidence,  but  it  may  serve 
the  purpose  and  supply  the  place  of 
evidence  by  setting  up  something 
which  must  be  overcome  by  proof 
to  the  contrary." 

132  sturdevant's  Appeal,  71  Conn. 
392;  Blough  v.  Parry,  144  Ind.  463. 

13.-5  In  re  Thompson,  92  Me.  563 ; 
Barnes  v.  Barnes,  66  Me.  286;  Hub- 
bard V.  Hubbard,  7  Oreg.  42 ;  Beaz- 
ley  V.  Denson,  40  Tex.  416;  Bald- 
win's Estate,  13  Wash.  666.  This 
proposition  is  so  qualified,  however, 
as  not  to  be  as  completely  in  con- 
tradiction of  the  rule  held  in  most 
states  as  at  first  appears. 


452  LAW    OF     WILLS. 

are  closely  interwoven  with  those  as  to  the  burden  of  proof, 
they  are  nevertheless  not  identical,  and  they  should  be  con- 
sidered separately.  In  some  jurisdictions,  where  the  burden  of 
proof  is  upon  the  proponents  of  the  will,  they  are  aided  by  the 
presumption  of  sanity,  which  may  turn  the  preponderance  in 
their  favor  where  the  other  evidence  is  equally  balanced,^  ^*  and 
where  the  court  has  refused  to  charge  that  "every  person  is 
presumed  of  sound  mind  until  the  contrary  is  sho^vn,"  this 
error  is  not  cured  by  a  charge  that  the  "burden  is  on  plain- 
tiffs to  show,  by  a  fair  preponderance,  unsoundness  of 
mind."  13^ 

§384.     Presumption  of  continuance  of  mental  condition. 

Where  evidence  is  introduced  which  shows  that  testator, 
prior  to  the  date  of  making  the  will,  suffered  from  some  form 
of  mental  disorder,  which  would  deprive  him  of  testamentary 
capacity,  and  this  disorder  is  shown  to  be  of  a  permanent 
type,  a  presumption  arises  that  such  incapacity  continued 
do^\^l  to  and  including  the  time  of  making  the  will.^^^  Thus,  a 
lunatic  without  lucid  intervals,^^'^  and  a  person  suffering  from 
senile  demeniia^^^  are  presumed,  in  the  absence  of  proof  to 
the  contrary,  to  remain  in  that  condition,  and  to  be  there- 
after incapable  of  making  a  valid  will. 

It  is  necessary,  in  order  to  raise  this  presimiption,  to  show 
that  the  insanity,  or  other  form  of  incapacity,  was  of  a  per- 
manent type;  and  a  general  charge  that  insanity  is  presumed 
to  continue  is  properly  refused.^  ^^  It  is  held,  however,  im- 
proper in  such  a  case  to  charge  that  the  burden  of  proving 
that  the  will  was  made  in  a  lucid  interval  rests  on  pro- 
ponents.-^'**^ 

134  Barber's  Estate,  63  Conn.  393;  348;  In  re  Hoopes'  Estate,  174  Pa. 
Sturdevant's  Appeal,  71  Conn.  393;  St.  373;  Ely's  Estate,  39  K  Y. 
42  Atl.  70;  Trish  v.  Newell,  62  111.       Supp.    177. 

196.  137 /ii  re  Hoopes'  Estate,  174  Pa. 

135  Blough  V.  Parry,  144  Ind.  463.       St.  373. 

136  O'Donnell  v.  Rodiger,  76  Ala.  i3s  Bever  v.  Spangler,  93  lo.  576. 
222;  Harrison  v.  Bishop,  131  Ind.  i39  Murphree  v.  Senn,  107  Ala. 
161;  Roller  v.  Kling,  1.50  Ind.  1.59;  424;  Manley's  Exr.  v.  Staples,  65 
Bever    v.      Spangler,    93    lo.     576;  Vt.  370. 

Chandler    v.    Barrett,    21    La.    Ann.  i4o  Merriman    v.    Merriman,    153 

58:   Von  de  Veld  v.  Judv,   143  Mo.       Ind.  631    (1899),  55  N.  E.  7.34;  and 


LAW    OF    WILLS.  453 

But  where  the  evidence  discloses  that  at  some  time 
prior  to  the  date  of  making  the  will  testator  suffered  from 
some  form  of  mental  disorder,  which  deprived  him  at  the  time 
of  testamentary  capacity,  and  that  this  incapacity  was  of  a 
temporary  nature,  no  presumption  of  the  continuance  of  such 
incapacity  arises,  and  the  presumption  of  sanity,  if  in  force  in 
that  jurisdiction,  will  prevail.^^^  Thus,  evidence  that  tes- 
tator suffered  at  one  time  from  religious  insanity,  of  a  tem- 
porary type,  raises  no  presumption  of  its  continuance;  ^^^  nor 
does  the  fact  that  testator  was  shown  to  be  given  to  the  habit- 
ual use  of  drugs'^^  or  stimulants  ^'*'*  raise  a  presumption  that 
the  effect  of  such  drugs  and  stimulants  operated  at  the  time 
of  the  execution  of  the  will,  and  affected  testator's  mental 
capacity  then. 

Evidence  that  testator  had  a  fit  of  epilepsy  on  the  day  he 
made  his  will,  before  its  execution,  does  not  establish  a  lack 
of  capacity  during  the  whole  day.^^^  Hence,  the  fact  that 
testator  once  attempted  suicide  does  not  raise  any  presump- 
tion that,  if  such  attempt  was  caused  by  insanity,  the  insanity 
existed  at  the  date  of  the  will.^''^  And  suicide  by  testator  six 
weeks  after  the  execution  of  his  will  does  not  raise  a 
presumption  that  he  was  insane  at  the  date  of  the  execution 
of  the  will.^^'^  ISTor  is  evidence  that  testator  was  very  irrita- 
ble three  years  before  the  execution  of  the  will  admissible.^  ■^^^ 

in   Louisiana  it  is  said  that  the  exe-  348 ;  Frost  v.  Wheeler,  43  N.  J.  Eq. 

eution  of  a  sensible  will  raises  the  573;  Miller  v.  Oestrich,  157  Pa.  St. 

presumption    that   it    was    executed  264. 

in   a   lucid   interval.      Kingsbury  v.  i*'*  Wilson's  Estate,  117    Cal.    2G2 ; 

Whitaker,  32  La.  Ann.  1055.  Ball  v.  Kane,  I  Penne.    (Del.),  90; 

141  Johnson  v.  Armstrong,  97  Ala.  Lee's  Will,  46  N.  J.  Eq.  193;   Koe- 

731;  /n  re  Wilson's  Estate,  117  Cal.  gel    v.    Egner,    54    N.    J.    Eq.    623; 

262;  Taylor  v.  Pegram,  151  111.  106;  Woolsey's  Will,  41  N.  Y.  Supp.  263. 

Williams   v.   Williams,   90   Ky.   28;  Apparently       contra,       Cockran's 

Von  de  Veld  v.  Judy,  143  Mo.  348;  Will,   1   T.   B.  Mon.    (Ky.),  263. 

Hix  V.  Whittemore,  4  Met.  (Mass.),  i^s  Johnson's  Will,  27  N.  Y.  Supp. 

545 ;  Koegel  v.  Egner,  54  N".  J.  Eq.  649 ;  57  N.  Y.  S.  R.  846. 

623;  Miller  v.  Oestrich,  157  Pa.  St.  i*o  Koegel  v.  Egner,  54  N.  J.  Eq. 

264.                                                            '  623. 

142  Williams  v.  Williams,  90  Ky.  i*'^  Bey's   Succession,  46  La.  Ann. 
28.  773. 

143  Von  de  Veld  v.  Judy,  143  Mo.  i48  Blood's   Estate,   62   Vt.   359. 


454  LAW    OF    WILLS. 

i^SSS.     Nature  of  will  as  evidence  of  capacity. 

With  the  exception  of  certain  statutory  ])rovisions,  which 
are  elsewhere  considered,  a  testator  who  has  sound  and  dis- 
posing mind  and  memory,  and  is  not  under  restraint,  may 
make  a  will  excluding  the  natural  objects  of  his  bounty  in 
part,  or  entirely,  from  sharing  in  his  estate.^ "^^ 

Under  the  civil  law  a  will  whereby  the  testator  without  just 
cause  excluded  from  his  estate  those  who  were  near  to  him 
in  blood,  as  where  a  parent  disinherited  a  child,  or  a  child 
excluded  a  parent,  was  known  as  an  inofficious  will,  and 
might  be  set  aside  by  a  form  of  contest  known  as  querela 
inofjiciosi  testamenti}^^  But  the  common  law  recognizes  no 
such  limitation  upon  the  testamentary  power  of  a  testator 
who  possesses  testamentary  capacity,  though  in  some  jurisdic- 
tions special  statutes,  which  are  elsewhere  considered,  limit 
testator's  power  of  devising  his  property  to  the  exclusion 
of  his  immediate  family.  However,  the  nature  of  the  will 
itself  is  clearly  one  of  the  controlling  facts  in  passing  upon 
doubtful  testamentary  capacity.  Popular  feeling  upon  this 
point  coincides  with  the  rules  of  law,  and  the  jury  or  the 
court  M'hich  decides  upon  the  facts  must  be  allowed  to  con- 
sider the  nature  of  the  will  in  connection  with  the  other  evi- 
dence in  the  case.^^-^ 

In  some  jurisdictions  the  effect  of  a  sensible  will  made  by  the 
testator,  unaided,  is  to  raise  a  presumption  of  sanity  so  strong 
that  even  if  testator  has  been  shown  to  be  habitually  insane 
it  is  presumed  that  the  will  was  made  in  a  lucid  interval.^''" 

i«See   Sec.   23.  G04 ;    Rivard    v.    Rivard,    109    Mich. 

150  Bouv.  Law  Diet.,  "In  officio-  98;  Prather  v.  McClelland  (Tex. 
sum."  Dig.  2,  5,  3,  13.  Paiilus.  Lib.  Civ.  App.),  20  S.  W.  657;  Prather 
4,  tit.  5,  Sec.  1.  V.  McClelland,  76  Tex.  574;   Silver- 

151  Wilson's   Will,    117    Cal.    262:  thorn's  Will,  68  Wis.  372. 
Stiirdevant's  Appeal.  71  Conn.  393;  Contra,  Barbour  v.  Moore,  4  App. 
42  Atl.  70;  Smith  v.  Smith,  75  Ga.  D.   C.   535, 

477  ;  Kaenders  v.  Montague,  180  111.  i52  Succession  of  Bey,  46  La.  Ann. 

300;    Hollenbeck   v.    f'ook,    180   111.       773;     Kingsbury    v.    Whitaker,     32 
65;    Aylward    v.    Briggs,    145    Mo.      La.  Ann.   1055. 


LAW     OF    WILLS. 


455 


In  jurisdictions  which  hold  that  the  burden  of  proof  shifts 
during  the  progress  of  the  trial,  the  rule  that  a  rational  will 
raises  a  presmnption  of  sanity  is  thus  stated:  If  the  will  is 
"consistent  in  its  provisions  and  rational  on  its  face  the  pre- 
sumption is  that"  the  testator  "was  of  sound  mind  at  the  time 
of  its  execution,  and  the  burden  shifts  to  contestant  to  show 
that  he  was  not  of  sound  mind  at  that  time."^''^  And  on  the 
other  hand,  if  the  will  is  unfair  and  unreasonable,  it  is  said 
that  the  burden  of  proof  shifts  to  the  proponents  to  establish 
the  mental  capacity  of  the  testator.^ ^'^ 

The  theory  that  the  burden  of  proof  never  shifts  has  al- 
ready been  explained.  In  states  where  this  theory  is  held, 
the  nature  of  the  will  is  to  be  considered  merely  as  evidence, 
and  the  burden  is,  of  course,  unchanged.^ ^^ 

If  the  will  is  unjust  and  unreasonable  in  view  of  the  rela- 
tions of  the  parties,  this  fact  may  be  shown  by  proper  evidence, 
and  may  be  considered  by  the  jury  as  bearing  upon  testator's 
capacity.-^  ^^ 

Such  injustice  may  be  considered  even  where  the  party 
who  is  unfairly  treated  makes  no  objection  to  the  validity 
of  the  will.  As  it  bears  upon  testator's  capacity,  any  person 
having  a  right  to  contest  the  will  may  introduce  evidence 
tending  to  establish  its  injustice.     Thus,  where  testator's  wife 

i53Bramel  v.   Bramel,  —    (Ky.),  106    lo.    203;    Newcomb's    Exrs.    v. 

— ;     39    S.    W.    520;     Newcomb    v,  NeM'Comb,    90    Ky.    120;    Maddox   v. 

Newcomb,   96   Ky.    120;    Maddox  v.  Maddox,  114  Mo.  35;  In  re  Burns'a 

Maddox,  114  Mo.  35.  Will,  121  N.  Car.  336. 

154  Gay  V.  Gillilan,  92  Mo.  250 ;  "That  the  inequities  of  a  will 
Maddox  v.  Maddox,  114  Mo.  35;  may  be  taken  into  consideration  in 
Budlong's  Will,  126  N.  Y.  423:  determining  the  mental  capacity  of 
Caldwell  v.  Anderson,  104  Pa.  St.  testator  or  whether  undue  influence 
199.  has   been   used,   is   too   well    settled 

155  Ousley  V.  Witheron,  13  Ohio  to  require  an  extended  examination 
C.  C.  298.  of     the     authorities."       Manatt     v. 

156  Pooler  V.  Cristman,  145  111.  Scott,  106  lo.  203,  citing  and  fol- 
405  (overruling  Rutherford  v.  Mor-  lowing  Crandall's  Appeal,  63  Conn, 
ris,  77  111.  397;  Nicewander  v.  365;  Sim  v.  Russell,  90  lo.  656; 
Nicewander.  151  111.  156;  Sim  V.  Davis  v.  Calvert,  5  Gill.  &  J.  (Md.) , 
Russell.  90  lo.  656:  Manatt  v.  Scott,  269;  Peck  v.  Carv,  27  N.  Y.  9. 


456  LAW   or   WILLS. 

had,  hj  her  property,  given  him  the  means  of  accumulating 
his  property,  and  she  was  very  unfairly  treated  in  his  will, 
but  she  did  not  contest  it,  it  was  held  that  the  heirs  might 
introduce  evidence  of  these  facts  to  show  that  the  will  was  an 
unjust  one.-^^'^ 

While  the  jury  may  consider  the  nature  of  the  will,  and 
its  justice  or  injustice,  this  is  only  one  out  of  many  things  to  be 
considered,  insufficient  of  itself  to  show  lack  of  mental  capac- 
ity.-^ ^®  Since  the  propriety  of  testators'  will  is  not  a  matter 
for  court  or  jury  to  pass  upon,  it  is  error  to  submit  such  ques- 
tion to  the  jury  in  any  form.^^^  So  while  circumstances  of 
inequality  and  unfairness  in  the  will, may  be  considered  in 
connection  with  other  evidence  as  bearing  upon  the  question 
of  capacity,  they  must  not  be  given  undue  prominence  by  the 
court  in  its  charge.  Thus,  a  charge  that  testamentary  capac- 
ity is  ability  ''to  understand  the  obligations  of  testator,  if 
any  are  shown  to  exist,  towards  any  person,"  is  erroneous  as 
giving  undue  prominence  to  such  obligations.-^  ^"^  And  a 
charge  that  the  injustice  of  the  will  is  to  be  considered  to- 

157  Pergason  v.  Etclierson,  91  Ga.  i^^  Barbour  v.  Moore,  4  App.  D. 
785.  C.   535;    Nieman   v.    Schnitker,    181 

158  Henry  v.  Hall,  106  Ala.  84;  111.  400;  Carpenter  v.  Calvert,  83 
Knox  V.  Knox,  95  Ala.  495;  In  re  III.  62;  Freeman  v.  Easly,  117  111. 
Kaufman's     Will,     117     Cal.     288;  317. 

Barbour  v.  Moore,  4  App.  D.  C.  Thus  where  no  evidence  tending 
535;  Bennett  V.  Hibbert,  88  lo.  154;  to  show  an  insane  delusion  had 
Barlow  v.  Waters  (Ky. ),  28  S.  W.  been  introduced  it  was  held  error 
785 ;  Kaufman  v.  Caughman,  49  S.  to  charge :  "A  person  may  have 
Car.  159  (disinheritance  of  child).  upon  some  subjects,  and  even  gener- 
"Apparent  inequality  or  inequity  ally,  mind  and  memory  and  sense 
in  the  provisions  of  a  will  will  not  to  know  and  comprehend  ordinary 
alone  warrant  the  presumption  of  transactions,  and  yet  upon  the  sub- 
mental capacity  or  undue  influence.  ject  of  those  who  would  naturally 
These  may  be  considered  as  cir-  be  the  objects  of  his  care  and 
cumstanees  in  connection  with  other  bounty,  and  of  a  reasonable  and 
facts  bearing  on  the  condition  of  proper  disposition  to  them  of  his 
the  testator's  mind."  Manatt  v.  estate,  he  may  be  of  unsound 
Scott,  106  lo.  203,  citing  and  fol-  mind,"  since  this  directed  the  atten- 
lowing  Knox  v.  Knox,  95  Ala.  495;  tion  of  the  jury  to  the  propriety  of 
In  re  Hess's  Will,  48  Minn.  504;  the  will.  Nieman  v.  Schnitker,  181 
Maddox    v.    Maddox,    114    Mo.    35;  111.  400. 

Turnure   v.   Turnure,   35   N.   J.   Eq.  i6o  Bulger  v.  Ross,  98  Ala.  267. 
437. 


457 

LAW    OT?    WILLS. 


getter  with  other  facts,  is  erroneo^,  as  it  gives  undue  promi- 
^pnf'p  to  the  iniustice  of  the  wilL^*^^  .    .       •     . 

"'^  rther,  if  L  court  charges,  as  it  properly  n.y,  tha^  a  p. 
will  is  strong  evidence  of  capacity,  aud  an  unjust  will  the 
;    r    ,  U  is°error  for  the  court  to  point  out  certain  uatura 
benefic  aries  only  t«  the  exclusion  of  others,  as  to  refer  to  the 
brothers  aud  sisters  of  the  testator  as  the  natural  objects  of 
b  s  boult'  to  the  exclusion  of  certain  nephews,  sons  of  a  de- 
c^Ised  brother.'-     And  it  is  error  to  assume,  as  a  matte    ol 
u'that  a  will  which^excludes  all  of  testator's  relations  is  . 
just  and  natural  one.'"^ 
§386      Evidence  of  financial  standing  of  parties. 

Since   the   great   weight   of    authority    allows   the    jury   to 
JZr  the     ustice  or  injustice  of   the   will   -  ^-™g  ;» 
testator's   capacity,    it   would   naturally     ollow   th=it   ^  ;-^_ 
free  inquiry  should  be  permitted  into  the  history  of  the  finan 
c  andi;g  of  the  parties  to  the  suit,  and  of  their  previous 

rrilt  1  IS   wtth   testator,    in   order   to   determine   whether  the 
V  U  was  fair  and  reasonable  or  not.      Accordingly    we  find 
1^    he  Irts  allow  inquiry  into  these  facts,  yet  with  more 
t  ^in  admitting  evidence  than  would  be  expected  froin 
■  tTeTroad  principle  laid  down  as  to  the  effect  of  the  nature  ot 

%:l,ce  is  admissible  as  to  how  testator  acquired  the  prop- 
erty disposed  of  by  will,'-  and  to  show  the  value  of  the  d 
Xt's  estate.'-  Evidence  is  admissible  to  show  advancements 
.tfbv  testator  in  his  life  U>  the  father  of  his  grandchildren, 
and  to  "show  the  size  of  their  father's  estate  as  showing  tha. 
the  will  was  a  reasonable  one.^^° 

v^.    _•  162  Sturdevant's  Appeal,  71  Conn. 

161  Herbert   v.   Long.   —   1"^>-         '  „      ,^    ..i     -n 

.3   S.  W.   658;   Zi,nlicli  v.   Zin^liC,       303 .   43^A.K   -0.  ^^^^^^  ^^  ^^^    ^^^_ 

^^  ^^-  ^^'-                ,           ,0,,    eourt  ^^*In  re  Wilson's  Estate,  117  Cal. 

Another    case    ^vhere    the    oouit  Etcherson,  91  Ga. 

erred  in  giving  such  prominence  to  262 ,   i  er^ason 

the  justice  of  the  will  as  to  lead  the  -So                                                 ^^^   ^^^^_ 

jury  to  pass  on  its  propriety,  rather  e.,  m^e  t 

than  its  validity,  is  Couch  v.  Gen-.  301.^^^^^^^^^^^  ^    ^^^^^^  ^^^^  ^^   ^^3 
try,  113  Mo.  248. 


458  LAW    OF    WJLLS. 

Evidence  of  financial  standing  of  the  contestants  has  been 
held  to  be  immaterial,  where  advancements  by  testator  were 
not  involved/ ^^  and  so  has  evidence  of  the  financial  stand- 
ing of  the  father  of  the  beneficiaries.-^^* 

Upon  this  point  the  conrts  are  not  in  accord.  In  a  recent 
Missouri  case  it  was  held  that  evidence  of  the  financial  stand- 
ing of  the  parties  to  the  contest  was  admissible/ ^^  and  the 
wealth  of  the  contestant  seems  to  have  been  properly  admitted 
in  a  Maine  case.  This  latter  case  is  not  a  precedent,  as  the 
only  evidence  of  incapacity  was  that  the  testatrix  was  old, 
was  subject  to  attacks  of  faintness  and  dizziness,  and  left  her 
property  to  an  adopted  child  to  the  exclusion  of  her  own 
child,  who  was,  however,  already  comfortably  provided  for; 
and  this  was  held  not  to  establish  insanity  conclusively.^ ''''' 
But  where  the  method  by  which  testator  acquired  his  prop- 
erty could  not  affect  the  testamentary  disposition  which  he 
would  naturally  make  of  it,  evidence  of  such  method  of  ac- 
quisition is  immaterial.-^ '^ 

§387.     Evidence  of  relations  between  testator,  beneficiaries,  and 
natural  objects  of  bounty. 

Evidence  of  services  rendered  and  favors  done  by  excluded 
relatives  for  testator  in  his  lifetime  is  inadmissible.^ '^^  So 
is  evidence  of  the  extent  to  wliich  the  decedent  aided  his  rel- 
atives in  his  lifetime.-^ ''^^  And  where  feeling  was  shown  to 
exist,  caused  by  quarrels  between  testator's  father  and  the  lat^ 

167  Pooler   V.    Cristman,     145   111.  disposed  of  more  than  she  possessed 

405;   Merriman's  Ajjpeal,  108  Mich.  was   held   not   conclusive  as   to   her 

454.  lack  of  testamentary  capacity.    Hall 

IBS  ]\Iurphree    v.    Senn,    107    Ala.  v.  Perry,  87  Me.  569. 

424.  171  Ormsby  v.  Webb,  134  U.  S.  47. 

i69McFadin    v.    Catron,    138    Mo.  1^2  Couch     v.     Gentry,     113     Mo. 

197;  120  Mo.  252;  Thompson  v.  Ish,  248;    Maddox  v.   Maddox,    114   Mo. 

99   Mo.    160;    so   Powers  v.   Powers  35. 

(Ky.),   (1899),.  .52  S.  W.  845.  Contra.     Held  admissible.     Burk- 

Compare  Manatt  v.  Scott,  106  lo.  hart  v.  Gladish,  123  Ind.  337. 

203.  173  Kelley  v.  Kelley,  168  111.  501. 

170  Hall  V.  Perry.  87  Me.   569.  But  in  Bush  v.  Delano,  113  Mich. 

The  fact  that  testatrix  in  her  will  321,    such   evidence   was   said   to   be 

"a    circumstance    of    slight    impor- 
tance"  but    admissible. 


LxVW     OF     WILLS.  459 

ter's  wife  and  brothers,  the  causes  and  merits  of  the  original 
quarrels  were  held  to  be  immaterial.^ ^^ 

The  fact  that  the  relations  of  testator  with  his  family  were 
always  pleasant  is  competent '  where  for  no  apparent  reason 
certain  children  were  disinherited  ;i^^  so  is  the  fact  of  a  feeling 
of  affection  long  entertained  by  testator  for  a  beneficiary/'^*^  as 
well  as  tlie  fact  of  a  long-standing  mutual  dislike  between  tes- 
tator and  his  brother,^^^  and  so  are  the  causes  which  induced 
testatrix  so  to  dispose  of  her  property.^^^  And  it  is  held  com- 
petent to  show  where  testator,  a  man  of  seventy,  and  a 
paralytic,  was  living  in  illicit  relations  with  a  woman  who 
he  said  was  his  illegitimate  daughter,  that  this  woman  had  a 
strong  family  resemblance  to  one  of  testator's  daughters,  and 
was  in  fact  an  illegitimate  child.^'^^ 

Where  it  was  slio\vn  that  testatrix  had  always  disliked  the 
mother  of  contestant,  and  had  opposed  the  marriage  of  con- 
testant's mother  with  the  son  of  testatrix,  it  was  held  that  such 
evidence  was  not  admissible  to  show  insanity  of  testatrix.^ *'^ 

§388.     Opinion  evidence. — Subscribing  witnesses. 

It  is  settled  by  the  almost  unanimous  weight  of  authority 
that  the  subscribing  witnesses  to  a  will  may  give  their  opinion 
as  to  the  sanity  or  insanty  of  the  testator  without  any  refer- 
ence to  their  means  of  determining  his  mental  capacity,  or 
their  ability  to  judge  of  his  capacity  with  the  means  at  their 
disposal.^ '^^ 

1T4  Turner's     Guardian    v.     King,  its  Patten    v.    Cilley,    67     N.    H. 

—  Ky.  — ;    32   S.  W.  941.  520. 

175 "/«  re  Burn's  Will,  121  N.  Car.  i^o  Johnson     v.     Armstrong,      97 

336.  Ala.   731. 

176  Slingloff  V.  Bruner,  174  111.  i^o  Spencer's  Estate,  96  Cal.  448. 
561;   Harp  v.  Parr,   108   111.  459.  isi  "The  witnesses  are  chosen  by 

177  Stevens  v.  Leonard,  154  Ind.  the  testator,  and  are  under  the  law 
67  (1900),  56N.  E.  27.  In  this  case  charged  with  an  important  duty  in 
the  declarations  of  the  brother  relation  to  the  execution  and  proof 
showing  his  hatred  of  testator  were  of  the  will.  It  may  be  presiuned 
lield  ndmissible  where  the  claim  of  that  in  the  performance  of  that  duty 
insanity  was  that  testator's  hatred  they  will  observe  carefully  the  ap- 
for  this  brother  was  due  to  insane 

delusion. 


460  LAW     OF     WILLS. 

The  subscribing  witnesses  may  give  their  opinions  as  to  the 
sanity  of  testator  without  hrst  stating  the  facts  upon  which  they 
base  their  opinions,^  **^  though  they  may  afterwards  be  ex- 
amined as  to  such  facts.^^^  But  where,  as  in  Massachusetts,  a 
non-expert,  non-subscribing  witness  can  not  give  his  opinion,  a 
subscribing  witness  can  not  be  examined  as  to  his  opinion  of 
testator's  sanity  based  on  facts  occurring  after  the  execution 
of  the  win.^84 

The  subscribing  witnesses  are  allowed  to  testify  directly  as 
to  the  sanity  of  the  testator,  "because  that  is  one  of  the  facts  nec- 
essary to  the  validity  of  the  will,  which  the  law  places  them 
around  the  testator  to  attest  and  testify  to."  ^^^ 

The  testimony  of  subscribing  witnesses  who  testify  to  the 
mental  capacity  of  testator  is  not,  as  a  matter  of  law,  to  be 
given  greater  weight  by  the  jury  than  the  testimony  of  other 
witnesses.-^ ^^  And  where  the  subscribing  witnesses  testify 
adversely  to  the  capacity  of  testator,  they  have  under  oath 
stated  that  he  was  incompetent  to  make  a  will,  while  by  their 
solemn  acts  in  subscribing  as  witnesses  the}^  have  in  eifect 
formally  declared  that  he  was  competent.  Accordingly,  their 
testimony  adverse  to  the  caj^acity  of  testator  is,  under  such 

pearance    of    the     testator     at     the  stances  attending  its  execution,  and 

time  and  form  an  opinion  as  to  his  upon  them  to  give  an  opinion  that 

sanity."     Williams   v.   Spencer,   150  the    testator    was    mentally    corape- 

Mass.  346.  tent    to    execute    it."      Denning    v. 

182  Ethridge  v.  Bennett,  9  Houst.  Butcher,  91  To.  425,  citing  In  re 
(Del.),  295;  Scott  v.  McKee,  105  Coleman's  Will,  111  N.  Y.  220; 
Ga.  256;  31  S.  E.  183;  Rob-  Doherty  v  O'Callaghan,  157  Mass. 
inson  v.  Adams,  62  Me.  369;  Wil-  90;  31  N.  E.  720 ;  Layman's  Will,  40 
liams  V.  Spencer,  150  Mass.  346;  Minn.  371:  42  N.  W.  286:  Scott  v. 
Hardy  v.  Merrill,  56  N.  H.  227;  Harris,  113  111.  447:  Blackburn  v. 
Holcomb  V.  Holcomb,  95  N.  Y.  316;  Crawford,  3  Wall.  175:  Fossler  v. 
Potter's  Will,  45  N.  Y.  Supp.  563;  Schriber,  38  111.  172:  Russell  v. 
Titlow  V.  Titlow,  54  Pa.  St.  216;  Jackson,  10  Hare,  204;  Graham 
Kaufman  v.  Caughman,  49  S.  Car.  v.  O'Fallon,  4  Mo.  338;  Pence  v. 
159;  Van  Huss  V.  Rainbolt,  2  Coldw,  Waugh,  —  Ind.  — ;  34  N.  E.  860. 
(Tenn.),   139.  i"^*  Williams  v.  Spencer,  150  Mass. 

183  "We  have  no  doubt  upon  both  346. 

reason  and  authority  that  one  who  is^  Hastings    v.    Rider,    99    Mass. 

becomes  a  witness  to  a  will  at  the  622. 

testator's    request     is   comnetent   to  isfi  See  Sec.  366. 

testify     to     all     facts     and    circum- 


LAW    OF     WILLS. 


461 


trying  circumstances,  of  but  little  value,^*'^  and  it  is  not  error 
for  the  court  to  so  instruct  the  jury.-^*'* 

§389.     Opinion  evidence. — Witnesses  other  than  subscribing  wit 
nesses. — Experts. 

An  expert,  in  cases  involving  mental  capacity  to  make  a 
will,  is  one  who  from  special  study  and  experience  is  familiar 
with  the  symptoms  of  mental  disease.-^''^ 

A  physician  who  has  made  a  specialty  in  study  of  mental 
diseases,  and  has  practiced  in  treating  such  diseases,  is  an 
expert  and  may  testify  as  such.^°° 

A  physician  in  general  practice  is  regarded  in  most  juris- 
dictions as  an  expert  upon  questions  of  sanity.  While  his 
qualifications  have  been  challenged  in  some  jurisdictions  in 
criminal  cases,  it  has  been  conceded  in  the  cases  involving  the 
validity  of  wills  that  he  is  an  expert,^ ®^  though  it  has  been 
intimated  that  he  should  at  least  be  the  physician  who  attend- 
ed the  testator.1^2 

By  the  weight  of  authority,  where  a  subscribing  witness  tes- 
tified that  he  was  a  physician  and  surgeon,  had  had  several 
years'  experience,  had  attended  to  testator  in  his  last  illness 
and  believed  him  to  have  been  of  sound  mind,  may  be  cross- 
examined  as  to  his  qualifications  as  an  expert.-^ ^^ 

A  superintendent  of  an  insane  asylum  who  has  made  a 
study  of  the  diseases  of  those  under  his  charge  is  an  expert, 
inasmuch  as  such  superintendents  are  generally  and  very 
properly  physicians  and  specialists  in  mental  diseases.^^'* 

187  Chappell  V.  Trent,  90  Ya.  849 ;  Davis,  81  Md.  134;  McHugh  v. 
See   Sec.   374.  Fitzgerald,    103    Mich.    21;    Pideociv 

188  Stevens  v.  Leonard,  Ind.  v.  Potter,  68  Pa.  St.  342 ;  Foster 
(1900)  ;  56  N.  E.  27.  v.  Dickerson,  64  Vt.  233. 

189  Crockett  v.  Davis,  81  Md.  i92  Hall  v.  Perry,  87  Me.  560. 
134;    Toomes's  Estate,   54   Cal.   509.  This   restriction   is   contrary   to   tlie 

i9'0' General     Convention,     etc.,    v.  great    weight    of    authority    as    set 

Crockett,  7  Ohio  C.  C.  327.  forth  in  the  cases  in  the  preceding 

191  7n  re  Mullin's  Estate,  110  Cal.  note.    Hutchins  v.  Ford.  82  Me.  363. 

252;  Barber's  Appeal,  63  Conn..393;  i93  Mullin's  Estate,   110  Cal.  252. 

Potts   V.    House,    6   Ga.    324 ;    Bever  i94  General     Convention,     etc.,    v. 

V.  Spangler,  93  lo.  576;  In  re  Fenr  Crocker,    7    Ohio    C.   C.    327;    Pren- 

ton's   Will,    97   la.    192:    Crocker   v.  tis   v.   Bates,   93   Mich.   234. 


462  LAW     OF     WILLS. 

A  priest  who  had  studied  mental  diseases  and  made  a  regu- 
lar use  of  his  studies  in  determining  the  mental  capacity  of 
those  who  confessed  to  him  and  applied  for  absolution,  was 
held  to  be  an  expert.-^ ^^  But  a  chaplain  who  has  regularly 
visited  insane  asylums  is  not  necessarily  an  expert  in  in- 
sanity.-'^^ 

An  expert  in  mental  diseases  may  give  his  opinion  as  to  the 
sanity  of  testator  without  giving  the  facts  upon  which  he  bases 
his  opinion.-' ^'^  This  opinion  may  be  based  upon  facts  ob- 
tained by  the  expert  in  either  of  two  ways : 

(a)  He  may  have  learned  the  facts  upon  which  he  bases  his 
opinion  by  personal  acquaintance  with  testator  extending  over 
a  period  of  time  long  enough  to  enable  the  expert  to  form  an 
opinion.-' ^^ 

(b)  The  facts  upon  which  the  opinion  is  based  may  be 
communicated  to  the  expert  in  the  form  of  an  hypothetical 
question,  in  which  the  attorney  narrates  the  facts  involved, 
and  asks  the  expert  his  opinion  of  tlie  mental  capacity  of  the 
man  described  in  such  question.^ '^^  He  may  also  give  his 
opinion  upon  an  hypothetical  question  supplemented  by  facts 
which  he  knows  personally,  and  concerning  which  he  has  tes- 
tified fully.200 

If  the  expert  gives  his  opinion  upon  the  facts  put  before 
him  by  a  hypothetical  question  the  value  of  such  opinion  de- 
pends upon  whether  the  evidence  establishes  such  facts  or  not. 
If  the  evidence  establishes  such  facts  the  jury  will  then  give 
to  the  opinion  such  weight  as  in  their  judgment  it  deserves. 
But  if  the  evidence  fails  to  establish  all  the  facts  set  forth 

In    a    former    decision    upon    this  los  Ledwith   v.    Claifey,   4.5   X.   Y. 

same    case    it    was    held    that    the  Supp.  G12. 

superintendent  of  an  insane  asylum  ^^'i  See  preceding  cases  cited  under 

could    not    trive    his    opinion    as    to  this   section. 

the    condition    of    a    patient    whom  i^s  Crockett  v.  Davis,  81  Md.  134 ; 

he  had  never  seen,  where  such  opin-  McHugh    v.    Fitzgerald,    103    Mich, 

ion  was  based  upon  the  absence  of  21. 

certain    facts    from    the    records    of  io9  Kempsey      v.     McC4inniss,     21 

the   asylum.      Prentis   v.    Bates,   88  Mich.    123;    Brown    v.    Mitchell,    88 

Mich.   .567.  Tex.    350. 

i9.-3  Toomes's  Estate,   54   Cal.   509.  200  Foster    v.    Dickerson.    64    Vt. 

233. 


LAW     OF  '  WILLS. 


463 


in  the  hypothetical  question,  the  opinion  based  upon  such 
facts  is  worthless,  for  the  facts  which  the  jury  reject  may  be 
the  controlling  facts  on  the  question  of  sanity.  Accordingly  it 
is  error  for  the  court  to  charge  the  jury  that  the  value  of  the 
opinion  of  the  expert  will  vary,  as  the  facts  set  forth  in  the 
hypothetical  question  fail  to  coincide  with  the  facts  as  found 
by  the  jury.^*^^ 

Sometimes  the  expert,  who  is  present  at  the  trial,  is  asked 
if  from  the  evidence  adduced  he  believes  that  the  testator  was 
sane  or  insane.  Such  a  question  is,  at  best,  very  objectionable. 
The  facts  should  be  put  in  the  form  of  an  hypothetical  ques- 
tion. 

It  is  possibly  not  error  to  permit  it,  however,  where  the 
evidence  referred  to  is  consistent,  and  is  adduced  by  one  of 
the  parties  to  the  suit.  Even  this  is  objectionable,  as  the 
expert  might  not  deduce  the  same  facts  from  the  evidence  as 
the  jury  might.  But  where  the  evidence  is  conflicting,  and  is 
adduced  by  both  parties  to  the  suit,  it  is  error  to  allow  the 
expert  to  express  bis  opinion  as  to  the  sanity  of  the  testator 
upon  such  evidence;  for  this  is  allowing  the  expert  to  usurp 
the  function  of  the  jury,  and  decide  what  evidence  should  be 
believed  and  what  should  be  rejected.  The  jury,  furthermore, 
if  not  actually  misled  by  such  opinion,  can  not  be  aided  by  it, 
for  they  can  not  tell  upon  which  of  the  facts  in  dispute  the 
expert  based  his  opinion. ^'^- 

The  value  of  expert  evidence  is,  at  best,  doubtful.  The 
witness  is  often  rather  the  advocate  of  one  side  than  the 
unbiassed  and  impartial  scientist,  whose  opinion  impresses  the 
jury  as  sound  and  fair.  In  actual  practice  his  opinions  have 
less  weight  than  would  be  expected  at  first  thought. 

The  courts  have  sharply  criticised  the  character  of  much 
expert  testimony,  in  no  case  perhaps  more  sharply  than  in 
one  from  Illinois.  "Upon  the  question  whether  (the  insanity) 
had  reached  such  a  stage  that  the  subject  of  it  was  incapable 
of  making  a  contract  or  irresponsible  for  his  acts,  the  opinion 

201  General  Convention,  etc.,  v.  (Mass.)  467;  Kempsey  v.  Mc&in- 
Crocker.   7    Ohio   C.   C.    327.  niss,  21  Mich.  123. 

202  Woodbury    v.    Obear,    7    Gray   ' 


464 


LAW    OF    WILLS. 


of  his  neighbors,  if  men  of  good  common  sense,  would  be  worth 
more  than  that  of  all  the  experts  in  the  country."  ^^^ 

§390.     Opinion  evidence. — Non-experts. 

A  non-expert  witness  who  is  not  a  subscribing  witness  can 
not  give  his  opinion  of  the  testator's  sanity  without  first  giv- 
ing the  facts  upon  which  he  bases  his  opinion.^^^  In  some 
jurisdictions  by  special  statute  an  exception  is  made  in  favor 
of  intimate  acquaintances  of  testator,  who  may  give  their 
opinions  as  to  his  sanity  without  first  stating  the  facts  upon 
which  such  opinion  is  based.^^^  It  rests  in  a  very  large  measure 
with  the  discretion  of  the  trial  court  as  to  whether  upon  the 
evidence,  the  witness  offered  was  an  "intimate  acquaintance" 
of  testator  or  not.^^^ 

The  general  rule  is  that  if  a  non-expert  witness  first  states 
the  facts  upon  Avhich  he  bases  his  opinion,  and  shows  that  he 
has  the  means  of  knowing  the  condition  of  testator's  mind, 
he  may  state  his  opinion  as  to  testator's  sanity.^^'^  And  where 
such  non-expert  witness  has  ample  opportunities  for  know- 
ing testator,  and  judging  of  his  mental  condition,  it  is  held 


203  Rutherford  v.  Morris,  77  111. 
397.  To  the  same  effect  are  Carpen- 
ter V.  Calvert,  83  111.  G2;  Ran- 
kin V.  Rankin,  61  Mo.  295;  Cox's 
Estate,  167  Pa.  St.  501;  Camp  v. 
Shaw,  52  111.  App.  241. 

204  Murphree  v.  Senn,  107  Ala. 
424;  O'Connor  v.  Madison,  98  Mich. 
183;  I.amb  v.  Lippincott,  115  Mich. 
611;  73  ]Sr.  W.  887;  In  re  Hoopes's 
Estate,  174  Pa.  St.  373;  Dickinson 
V.  Dickinson,  61  Pa.  St.  401;  Tit- 
low  V.  Titlow,  54  Pa.  St.  216; 
Shaver  v.  McCarthy,  110  Pa.  St. 
339;  Elcessor  v.  Elcessor,  146  Pa. 
St.  359. 

205  Wax's    Estate,    106    Cal.    343. 

206  Wax's  Estate.  106  Cal.  343; 
Carnenter's  Estate,  94  Cal.  406. 

207  Bulger  v.  Ross,  98  Ala.  267 ; 
Burney    v.    Torrey,    100    Ala.    157; 


Brook's  Estate,  54  Cal.  471;  Grant 
V.  Thompson,  4  Conn.  203:  Turner's 
Appeal,  72  Conn.  305 ;  Ethridge  v. 
Bennett  Exrs.  9  Houst.  (Del.),  295; 
Potts  V.  House,  6  Ga.  324 ;  Craig  v. 
Southard,  148  111.  37;  Bower  v. 
Bower,  142  Ind.  194;  Denning  v. 
Butcher,  91  lo.  425;  In  re  Gold- 
thorp's  Estate,  94  lo.  336;  In  re 
Fenton's  Will,  97  lo.  192;  Beau- 
bien  v.  Cicotte,  12  Mich.  459  ;  Pren- 
tis  V.  Bates,  93  Mich.  234 ;  Lamb  v. 
Lippincott,  115  Mich.  611;  73  N. 
W.  887;  Hardy  v.  Merrill,  56  X. 
H.  227;  Roush  v.  Wensel,  15  Ohio 
C.  C.  133;  Pidcock  v.  Potter,  68 
Pa.  St.  342;  Bro^Ti  v.  Mitchell.  87 
Tex.  140:  75  Tex.  9;  Foster  v.  Dick- 
erson,  64  Vt.  233;  Whitelaw  v. 
Sims,  90  Va.  588 ;  Young  v.  Bar- 
ner.  27  Gratt.    (Va.).  96. 


LAW     OF     WILLS.  4(55 

that  lie  may  give  his  opinion  as  to  his  sanity,  even  if  he  can  not 
give  in  detail  the  conversations  or  specific  facts  upon  which  he 
bases  his  opinion.-^^ 

Considerable  liberality  is  shown  by  the  courts  in  allowing 
persons  who  are  comparatively  slightly  acquainted  with  tes- 
tator to  testify  as  to  their  opinion  of  his  sanity.  A  clergyman 
who  visited  testatrix  in  her  last  illness  was  allowed  to  give  his 
opinion  as  to  her  mental  condition  after  stating  the  facts  on 
which  such  opinion  was  based.^*^''  A  stenographer  who  took 
the  deposition  of  testatrix  for  a  period  of  about  two  hours, 
and  testified  that  testatrix  hesitated  and  was  prompted  often, 
was  allowed  to  give  her  opinion  that  testatrix  was  feeble- 
minded.-^" And  a  non-expert  witness  was  allowed  to  testify 
to  a  conversation  with  testator  about  four  years  before  the  date 
of  his  will,  and  upon  that  as  a  basis  give  an  opinion  as  to  his 
sanity.^^^ 

In  some  jurisdictions,  if  not  all,  a  different  rule  exists  for 
lavins:  a  foundation  for  an  opinion  of  sanitv  from  that  which 
is  required  for  an  opinion  of  insanity.  Any  old  acquaintance 
who  has  had  opportunities  for  knowing  testator's  mental  con- 
dition can  testify  that  he  believes  that  testator  was  sane;  but 
before  a  non-expert  witness,  who  is  not  a  subscribing  witness, 
can  give  his  opinion  that  testator  was  insane,  he  must  give  the 
facts  upon  which  he  bases  his  opinion,  which  facts  must  fairly 
justify  the  inference  of  insanity.^^^     But  if  the  witness  shows 

208  Stanley's  Appeal,  62  Conn.  and  intimate  acquaintance  with  an- 
325 ;  Newcomb's  Exrs.  v.  aSTewcomb,  other  to  enable  the  formation  of  a 
96  Ky.  120;  Prentis  v.  Bates,  93  correct  judgment  as  to  the  mental 
Mich.  234;  Foster  v.  Dickerson,  64  condition  of  such  other  person  a 
Vt.   233.  (non-expert)    witness  may  give  his 

209  Ethridge  v.  Bennett's  Execu-  opinion  that  the  person  is-  of  sound 
tors,  9  Houst.    (Del.),  295.  mind.     Sanity  is  thje  normal  condi- 

210  Zn    re    Fenton's    Will,    97    lo.       tion  of  mankind.     .     .     . 

]^92.  To  authorize  a  non-expert  to  give 

211  Bower  v.  Bower,  142  Ind.  194.  his   opinion   of   the   existence   of   an 

212  Murphree  v.  Senn,  107  Ala.  unsound  condition  of  mind  he  must 
424;  Lamb  v.  Lippencott,  115  INIich.  not  only  have  had  the  opportunity 
611;  Prentis  v.  Bates,  93  Mich.  to  form  a  judgment,  but  he  must 
234;  Buvs  v.  Buvs.  99  Mich.  354;  state  the  facts  on  which  it  is  based." 
O'Connor  v.  Madison,  98  Mich.  183.  Burney  v.  Torrey,  100  Ala.   157. 

"Where  there  has  been  that  long 


466  T.AW     OF     WILLS. 

that  he  has  not  the  means  of  forming  an  opinion  he  will  not 
be  allowed  to  state  his  opinion.  Thns,  a  witness  who  had  not 
commnnicated  with  testator  for  five  years  out  of  the  last  nine 
of  his  life  was  not  allowed  to  give  his  opinion  as  to  testator's 
sanity  during  those  nine  years.^^^ 

In  Massachusetts  it  is  held  that  a  witness,  who  is  neither 
an  expert  nor  a  subscribing  witness,  can  not  give  his  opinion 
as  to  testator's  sanity,  no  matter  what  his  opportunities  for 
observation.^^  ^ 

Where  the  non-expert  witness  has  some  means  of  forming 
an  opinion,  the  value  of  his  evidence  depends  on  his  oppor- 
tunities for  forming  an  opinion.^^^  If  the  witnesses  testify 
that  testator  is  insane,  but  give  as  a  basis  for  such  opinion 
facts  which  do  not  justify  it,  their  evidence  on  this  point  is 
worthless,  and  can  not  support  a  verdict  in  favor  of  con- 
testants.^-^ ^ 

§391.     Form  of  questions  not  calling  for  opinion. 

In  order  to  direct  the  mind  of  a  witness  who  is  being  ex- 
amined as  to  the  conduct  and  behavior  of  testator,  to  the  par- 
ticular kind  of  conduct  or  behavior  to  be  testified  to,  it  is 
often  necessary  to  characterize  such  conduct  as  'peculiar,' 
'extraordinary'  and  the  like,  and  ask  if  such  kind  of  conduct 
was   observed.      Such  questions,    if  properly   framed,   are   not 

213  Denning  v.  Butcher,  91  lo.  edge  and  skill  to  judge  intelligently, 
425.  as    to    which    every    unskilled    wit- 

214  Smith  V.  Smith,  157  Mass.  ness  has  a  different  standard,  and 
389.  (Where  the  witness  had  known  which  can  be  quite  as  well  under- 
testator  for  twenty  years.)  See  stood  by  the  court  or  jury  from 
the  long  line  of  cases  cited  upon  proof  of  the  details  of  the  acts 
this  point  in  Massachusetts  courts.  and  conduct  of  the  person  whose 
In  this  case  an  earnest  but  fruit-  mental  capacity  is  in  question." 
less  effort  was  made  to  induce  the  Hastings  v.  Rider,  99  Mass. 
court  to  overrule  its  previous  deci-  622,  cited  and  followed  in  Smith  v. 
sions  and  follow  the  weight  of  au-  Smith,    157   Mass.    389. 

thority.  ^^^  Merriman's  Appeal,  108  Mich. 

"They    are    not    facts    but    opin-  454. 

ions    of    those    having    no    peculiar  216  Sanders    v.    Blakeley,     (Ky.) 

duty  or  capacity  to  form  them  upon  (1900),  55  S.  W.  10. 
a    matter    requiring    special    knowl- 


T.AW     OF     WILLS.  ^^' 

objectionable  as  calling  for  an  opinion.  They  are  merely 
questions  as  to  facts  observed,  and  if  they  were  not  allowed, 
it  would  be  practically  impossible  to  get  them  before  the  jury 
without  ooing  over  each  occasion  when  witness  saw  testator 
in  his  wliole  life.  Accordingly,  it  is  not  calling  for  an  opin- 
ion to  ask  a  non-expert  witness  if  he  noticed  any  difference  in  the 
appearance  of  testatrix  between  the  first  time  he  saw  her  and  the 
last,  indicating  mental  strength  or  weakness.^^^  I^or  is  it 
calling  for  an  opinion  to  ask  a  witness  Avho  had  testified  that 
testator  had  been  on  a  particular  occasion  ''making  faces  and 
slapping  himself  and  making  manoeuvers"  if  he  saw  "anything 
strange  or  unusual  in  his  conduct,''-^ ^  nor  to  ask  if  on  a  certain 
occasion  when  testator  had  transacted  business  he  acted  in  a 
rational  manner  ;2^9  or  if  he  saw  anything  to  indicate  mental 
unsoundness."^'^ 

But  the  question  put  to  witness  must  not  be  so  expressed  as 
to  usurp  the  functions  of  the  jury.  Thus,  it  is  not  proper 
to  ask  a  witness  if  certain  accusations  of  theft  made  by  tes- 
tatrix against  her  neighbors  were  not  understood  by  witness 
to  be  '^improbable  and  impossible."  ^-^ 

§392.     Form  of  questions  calling  for  opinion. 

The  form  of  the  question  which  calls  for  an  opinion  as  to 
testator's  sanity  from  a.  Avitness  competent  to  give  an  opinion, 
and  the  nature  of  the  opinion  thus  called  for,  are  very  im- 
portant topics  in  the  actual  trial  of  a  case.  A  form  not 
infrequent  is  something  like  this:  "In  your  judgment  was 
testator  competent  to  make  a  will  ?" 

This  form  finds  justification  in  the  language  used  in  many 
cases  where  the  precise  point  has  not  been  presented  for  con- 
sideration,222   but  it  is  inherently  vicious,   as   it  presupposes 

217  Manatt  v.   Scott,   106  lo.  203.  222  Ethridge  v.  Bennett,  9  Hoiist. 

2isPetefish    V.    Becker,     176    111.  (Del.),  295.      (Where  the  objection 

448,  was  not  to  the  form  of  the  question 

219  In  re  Wax's  Estate,  100  Cal.'  but  to  the  admissibility  of  the  opin- 
343  ion  and  the  question  'what  was  her 

220  Kimberly's  Appeal,  OS  Conn.  capacity  to  make  a  will'  was  held 
428.  to   be    proper.) 

221  Titus  V.  Gage,  70  Vt.  13. 


468 


LAW    OF    WILLS. 


that  the  witness  knows  what  degree  of  capacity  the  law  re- 
quires in  order  that  testator  may  make  a  valid  will,  and  in 
addition  to  the  opinion  of  the  witness  as  to  testator's  sanity, 
such  a  question  calls  for  the  opinion  of  the  witness  as  to  the 
law.--^  Accordingly  the  courts  which  have  considered  this 
exact  point  have  held  that  such  question  is  improper,  and 
should  not  be  allowed.^-'*  So  the  witness  can  not  be  asked  if 
testator  had  "mental  capacity  to  make  a  will"  or  any  sim- 
ilar form  of  question  which  assumes  that  the  witness  knows 
what  the  legal  requirement  of  testatmentary  capacity  is.^^^ 
IsoY  is  it  j^roper  to  ask  a  non-expert  witness  if,  in  his  opinion, 
the  testator  was  capable  of  transacting  ordinary  business.^"^ 
Some  courts  hold  that  the  expert  should  be  asked  simply  to 
state  his  opinion  of  testator's  capacity  in  his  own  language.^^^ 
Or  he  may  be  asked,  ""Was  the  testator,  in  your  opinion,  ca- 
pable of  planning  and  executing  such  a  paper  as  is  here 
offered  as  his  will  ?"  ^^^  But  it  was  held  that  a  subscribing 
witness  could  not  be  asked  if  testatrix  had  strength  of  mind 
sufficient  to  comprehend  a  clause  creating  charitable  trusts.^-^ 


223  "What  degree  of  mental  capa- 
city is  necessary  to  enable  testator 
to  make  a  valid  will,  to  what  ex- 
tent and  with  what  degree  of  per- 
fection he  must  understand  the  will, 
and  the  persons  and  property  af- 
fected by  it,  or  to  what  extent  his 
mind  must  be  impaired  to  render 
him  incapable,  is  a  question  of  law 
exclusively  for  the  court,  with  which 
witnesses  have  notliing  to  do." 
Kempsey  v.  McGinniss,  21  Mich. 
123,  cited  in  Brown  v.  Mitchell,  88 
Tex.  350. 

224  Walker  v.  Walker,  34  Ala 
469;  Schneider  v.  Manning,  121  111 
376;  White  v.  Bailey,  10  Mich.  155 
Kempsey  v.  McGinniss,  21  IMich 
123;  Buys  v.  Buys,  99  Mich.  354 
Farrell  v.  Brennan,  32  Mo.  328 
Clapp  V.  Fullerton,  34  N.  Y.  190 
Hewlett  V.  Wood,  55  N.  Y.  634; 
Runyan  v.  Price,   lu  O.  S.   1;   Gib- 


son V.  Gibson,  9  Yerg.  329 ;  Brown 
V.  3Iitchell,  88  Tex.  350;  In  re 
Blood's  Will,  62  Vt.  359;  19  Atl. 
770. 

225]\Iay  V.  Bradlee,  127  Mass. 
414;  Hall  v.  Perry,  87  Me.  569; 
Kempsey  v.  McGinniss,  21  Mich. 
123;  Crowell  v.  Kirk,  3  Dev.  355; 
Fairchild   v.    Bascomb,    35   Vt.    398. 

226  Torrey  v.  Burney,  113  Ala. 
496. 

22- Crowell  V.  Kirk,  3  Dev.  (N. 
Car. ) ,  355 ;  Fairchild  v.  Bascomb, 
35  Vt.  398. 

228  Beaubien  V.  Cicotte,  12  Mich. 
459;  Kempsey  v.  McGinniss,  21 
Mich.  123. 

229  "It  involved  an  opinion  on  a 
subject  about  which  jurors  and  wit- 
nesses might  have  differed,  and 
which  would  not  furnish  a  safe 
standard  for  comparison."  Melaney 
V.  Morrison,  152  Mass.  473. 


LAW     OF     WILLS.  ^"" 

Another  form  that  has  been   approved   is:      "What  would 
you  say  as  to  whether  at  that  time  her  mind  was  clear  ?"  ^^o 

§393.     Tims  at  which  opinion  must  exist. 

The  subscribing  witness  should  be  examined  as  to  his  opin- 
ion concerning  the  capacity  of  testator  which  he  held  at  the 
date  of  the  execution  of  the  wiU.^^^^  The  opposite  view  is  held 
in  Ohio.  The  witness  must  there  be  examined  as  to  the  opin- 
ion of  testator's  sanity  entertained  by  him  at  the  date  of 
examination.232  j^  ^^s  been  held  that  evidence  may  be  in- 
troduced to  show  that  prior  to  testator's  death  contestant 
reo-arded  testator  as  mentally  competent  to  do  business.^ -^^ 

§394.     Time  to  which  evidence  must  relate. 

The  evidence  in  questions  of  capacity  must  be,  as  in  other 
eases,  confined  to  the  point  at  issue.  This  point  is  the  con- 
dition of  the  testator  at  the  time  that  he  made  the  will.^^^ 
This  is  the  ultimate  fact  to  be  established.  But  in  order  to 
place  the  condition  of  testator's  mind  clearly  before  a  jury 
ar  a  court  it  is  necessary  to  receive  evidence  of  his  condition 
before  and  after  the  time  of  the  execution  of  the  will.  Any 
other  rule  would  leave  those  who  were  present  at  the  time  of 
the  execution  as  the  only  witnesses  whose  evidence  would  be 
admissible  as  to  capacity,  and  would  render  fraud  easy  and 
safe.  Accordingly  evidence  of  the  mental  condition  of  tes- 
tator, both  before  and  after  the  execution  of  the  will,  is  ad- 
missible to  show  his  condition  at  the  moment  of  making  the 
will.2^^      Thus,   evidence   of  the   condition   of  testatrix   upon 

230  McHugh     V.     Fitzgerald,     103  233  Sim  v.  Russell,  00  To.  G56. 

-^[ch.  21.  234  Smith  v.   Day    (Del.),  45   Atl. 

23iEthridge  v.  Bennett,  9  Houst.  39G ;    Harp    v.    Parr,    1G8    111.    459; 

(Del.),  295;   Gwin  v.  Gwin    (Ida.),  Von  de  Veld  v.  Judy,  143  Mo.  348. 

48  Pac.  295;  In  re  Will  of  Ingalls,  235  Moore    v.    Heincke,    119    Ala. 

148  111.  287;    Williams  v.   Spencer,  627;    24   So.   376;    Moore  v.    Spier, 

150  Mass.  346 ;  citing  Poole  V.  Rich-  80    Ala.    129;    Terry   v.    Buffmqton, 

ardson,    3   Mass.    330;    Robinson    v.  11    Ga.    337;    Green    v.    Green.    145 

Adams,  62  Me.  369.  HI.    264;     Harp    v.    Parr,     168    111. 
232  Runyan  v.   Price,   15   0.   S.    1. 


470  LAW    OF     WILLS. 

the  evening  of  the  day  that  she  made  her  will,^^^^  j^^^j  evidence, 
of  condition  within  four  days  of  tlie  execution  of  the  will,-^^ 
or  for  five  months  before  and  eleven  months  after  the  execu- 
tion of  the  will,  has  been  held  admissible.^^^^  So,  where  the 
disease  was  of  long  standing  and  progressive  development,  evi- 
dence of  the  action  and  manners  of  the  testator  for  a  period  of 
six  years  after  making  the  will  was  admissible.^^^ 

The  courts  have  gone  so  far  as  to  intimate  that  in  a  proper 
case  the  whole  life  of  testator  may  be  gone  into,  in  order  to 
determine  his  mental  condition  at  the  time  that  he  made  his 
wilL^-io 

The  right  of  one  party  to  go  into. the  history  of  testator's 
life  for  a  given  period  is  especially  clear  where  the  adversary 
party  has  been  allowed  to  go  over  the  same  period.^"*!  And 
where  the  court  has  of  its  o^^^l  motion  charged  as  to  the  effect 
of  testator's  conduct  prior  to  the  execution  of  his  will  upon 
the  validity  of  such  will,  it  is  error  for  the  court  to  refuse  a 
correct  charge  as  to  the  effect  of  testator's  conduct  subsequent 
to  the  execution  of  said  will.^'*^ 

The  right  to  go  into  the  history  of  testator's  life  is  within 
the  reasonable  control  of  the  court,  however.  It  was  held  not 
to  1)0  error  for  the  trial  court  to  limit  evidence  of  specific  acts 
tending  to  show  unsoundness  of  mind  to  a  period  reaching 
from  eight  years  before  the  will  to  two  and  one-half  years 
after,  even  though  experts  testified  that  they  could  give  a 
better  estimate  of  his  condition  if  the  time  limit  were  ex- 
tended.2^3 

459;  Moore  v.  Gubbins,  54  111.  App.  237  Moore  v.  Gubbins,  54  111.  App. 

1G3. 

238  Messner  v.  Elliott,  184  Pa.  St 
41. 

239  Bever  v.  Spangler,  '93  lo.  57G. 

240  Dale's  Appeal,  57  Conn.  127 ; 
Ross  V.  McQuiston,  45  lo.  145; 
Shailer  v.  Bumstead,  99  Mass.  112. 


163;  Stoser  v.  Hogan,  120  Ind 
207 ;  Bower  v.  Bower,  142  Ind 
194 ;  Bever  v.  Spangler,  93  lo.  576 
Von  de  Veld  v.  Judy,  143  Mo 
348;  Hegney  v.  Head,  126  Mo.  619: 
Turner  v.  Cheesman,  15  N.  J.  Eq 
243;  Messner  v.  Elliott,  184  Pa 
St.    41;    Reichenbach    v.    Ruddach,  2.41  Petefiali    v.    Becker,     176    III 

127    Pa.    St.    564;    Mitchell   v.   Cor-       448. 

pening,    124   N.    Car.    472.  2*2  Lamb  v.   Lynch,   56  Neb.   135. 

236McHugh     V.     Fitzgerald,     103  243  Howes   v.   Colburn,    165   Mass. 

Mich.  21.  385. 


LAW     OF     WILLS.  471 

But  where  the  evidence  is  not  such  as  to  throw  light 
upon  the  condition  of  testator  at  the  time  of  making  the 
will,  it  is  inadmissible.  Thus,  evidence  of  an  insane  delusion 
is  inadmissible  to  show  the  condition  of  testator's  mind  where 
the  evidence  shows  that  the  will  was  made  long  before  the 
delusion  existed.^^'*  And  the  record  of  the  appointment  of 
a  guardian  two  or  three  years  after  the  execution  of  the  will 
is  inadmissible.^^^ 

§395.     Evidence  of  insanity  of  testator's  relatives. 

It  is  proper  to  admit  evidence  tending  to  show  that  the  an- 
cestors of  testator  suffered  from  a  type  of  insanity  which  was 
hereditary  in  its  character,^"'^  as  it  is  also  to  admit  evidence 
of  the  insanity  of  the  sister  and  niece  of  testatrix  when  such 
insanity  was  of  a  type  which  might  be  hereditary.^^''^ 

But  unless  the  evidence  tends  to  show  that  the  insanity  of 
testator's  ancestors  or  relatives  was  of  a  type  that  might  be 
transmissible  by  inheritance,  evidence  of  such  insanity  is  in- 
admissible. So  evidence  that  the  father  of  testator  had  been  so 
given  to  habits  of  intoxication  that  he  became  insane  therefrom 
is  inadmissible  to  show  that  testator  was  insane. ^^^  And  evi- 
dence that  the  father  of  testatrix  was  intemperate  in  his  youth 
was  inadmissible  where  no  medical  expert  evidence  was  intro- 
duced to  show  that  such  intemperance  might  result  in  hered- 
itary insanity.^'*® 

§396.     Evidence  of  res  gestae  of  execution. 

The  facts  and  circumstances  of  the  execution  are  admis- 
sible in  evidence  as  reflecting  upon  the  capacity  of  testator. 
Thus,  a  conversation  at  the  time  of  execution  between  persons 

244  Merriman's  Appeal,   108  Mich.  ton,  28   111.   300;    Baxter  v.  Abbott, 

454,   distinguishing  Haines  v.   Hay-  7  Gray   (Mass.),  71. 

den,  95  Mich.  332,  247  Prontis  v.  Bates,  93  Mich.  234. 

2-in  Entwistle    v.    Meikle,    ISO    111.  24s  Keichenbach    v.    Ruddaeh,    127 

9.  Pa.  St.  504. 

24sCoughlin    v.    Poulson,    2    Mc-  249  Titus  v.  Gage,  70  Vt.  13. 
Arthur    (D.  C),  308;   Snow  v.  Ben- 


472  I'AW    OF    WILLS. 


there  present  with  reference  to  the  condition  of  testatrix  is 
admissible  as  part  of  the  res  gestae. 


250 


S397.     Conduct  of  testator. 

o 

Among  the  facts  of  the  life  of  testator  which  may  be  in- 
quired into  to  determine  his  capacity,  his  business  transac- 
tions and  dealings  are  of  great  importance.  Some  courts  go 
so  far  as  to  say  that  "it  is  a  rule  of  law  that  a  person  who  \& 
capable  cf  transacting  ordinary  business  is  capable  of  making 
a  valid  will."^^^  And  when  this  statement  is  made,  as  in 
these  cases,  of  a  person  not  suffering  under  an  insane  delu- 
sion, it  is  clearly  correct.  Accordingly  evidence  of  the  nature 
and  extent  of  the  business  transactions  carried  on  by  testator 
during  the  period  when  contestants  claim  that  he  was  incom- 
petent to  make  a  will  is  admissible.-""  Thus,  a  witness  may 
testify  to  the  details  of  a  business  transaction,  and  testify  that 
testator  performed  this  business  like  a  rational  man;^^^  and 
it  is  admissible  to  show  that  testator  did  not  make  out  his 
own  tax  lists  for  two  years  after  he  made  his  will,  and  in 
troduce  the  tax  lists  made  out  for  him;-^**  and  to  show  tha, 
a  person,  whose  unsecured  note  testator  accepted  in  place  of 
a  mortgage,  owned  no  property  except  such  as  was  exempt.^^" 
A  witness  may  testify  to  specific  acts  of  testator  from 
which  insanity  may  be  inferred  without  being  called  on  for 
his  opinion  of  the  insanity  of  testator.^"® 

But  evidence  which  fails  to  tend  to  show  that  testator  acted 
in  an  irrational  manner  may  be  excluded  if  offered  by  con- 
testants, as  it  can  not  aid  them  to  establish  the  issue  on  their 

250  Kostelecky  V.  Scherhart,  99  lo.  252  Wax's  Estate,  106  Cal.  343; 
120.  Morris  v.  Morton's  Exr's,  —  Ky.  — ; 

251  Entwistle  v.  Meikle,  180  111.  20  S.  W.  287 ;  Bonnemort  v.  Gill, 
9,  quoting  and  approving  Meeker  165  Mass.  493;  In  re  Cox's  Estate, 
V.  Meeker,  75  111.  260,  and  citing  167  Pa.  St.  501 ;  Messner  v.  Elliott, 
Lilly    V.    Waggoner,    27    111.     395;  184  Pa.  St.  41. 

Myatt  V.  Walker,  44  111.  485 ;  Brown  253  Wax's    Estate,    106    Cal.    343. 

V.  Riggin,  94  111.  560;   Campbell  v.  254  Bower  v.  Bower,  142  Ind.  194. 

Campbell,    130    111.    466;    Greene   v.  255  Titus  v.  Gage.  70  Vt.  13. 

Greene,   145   111.  264;   also  Harp  v.  256  Bower  v.  Bower,  142  Ind.  194. 
Parr,  168  111.  459. 


473 

LAW    OF    WILLS. 

„n,-t  to  he  established.  Thus,  the  fact  that  testatrix  once  paid 
Ttt  a  cUn  a  child  as  heir  of  her  husband's  estate  rather 
than  have  litigation  over  her  husband's  will  is  no  adnus- 
iTe-  Nor  ts  evidence  that  testator  was  absentn>tnded,  and 
:!s  sad  a,Kl  afflicted  over  the  death  of  h.s  w>fe  suffietent  to 
show  a  lack  of  testamentary  capacity. 

As  the  law  does  not  in  any  case  require  ability  to  manage 
complicated  business,  evidence  that  testator  was  not  able  to  mau- 
ao-e  complicated  business  is  not  admissible." 
°  E  .idence  that  persons  failed  to  persi.de  testatrix  ^  qui 
the  use  of  opium,  and  that  testatrix  talked  foolishly  on  this 
Z>Z  has  been  held  admissible;  while  evidence  that  tes- 
;Sadually  came  to  use  more  whiskey  in  the  later  years 
of  her  life  is  held  inadmissihle.^^^ 

In  determining  testator's  capacity  to  make  a  will  evidence 

is  admissible  eoncei-ning  the  weakness  of  his  memory  and  bi. 

thet  mental  trait..-  In  order  to  show  Uie  ^^J^^^ 

of  testatrix,  it  is  proper  U>  show  jiow  she  acted  when  suJ. 

mental  condition  was  spoken  of.^'*" 

§398.     Ability  to  answer  questions. 

'    It  mav  be  here  observed  that  the  ability  to  answer  ques- 
tions does  not  of  itself  show  that  the  testator  poss^ses  the 


men 


.tal   ability  requisite  for  testamentary   capacity. 


§399.     Sudden  change  of  feeling. 

The  fact  that  testator  apparently  changed  his  feelings  for 

a  natural  object  of  his  bounty  in  a  comparatively  short  time 

o  .  .    .„      14^    Til  26S  Feiiton's  Will,  97  lo.  in2. 

^,,  Pooler  v.  Cr.tnmn       4      III.  ^^^  _^^  ,^^^  ^    ^^^_^._^_^   ^_^  ^^    ,,^  ^ 

405.  amrmmg  45  111.  App.  66*.  ,     ,    n  ,,    T„T,cratp    95  Kv.  208 

25S  Ouachita    Baptist    College    v.  Mendenhall  v.  Tungate    J5  Ky. 

.Tai     Qdo  (ability  to  answer  "yes'  and    no   ). 

Scott,  64  Ark.  349  ^          ^          ^^^^^_  ^^  ^,^_  849:    19 

..pMaddox   V.   Maddox,    114   Mo.  Cha^  ^^^^    ^^^.^.^^^  ^^  ^^^^^^  ^^^.. 

^^'      .r                  T^iUnff    184  Pa    St  narv   questions);    Baker   v.    Baker, 

260Messner  v.  Elliott,  184  Fa.  bt.  ^^^ ^,^    ^26:  78  N.  W.  453    (abil- 

*^-      _,            -n  1,.     1^-^    Til     '>69-  itv    to    answer    "yes"   and   "no")  ; 

.Of  Daly    v^    Daly,    183    111.  tucker  v.  Sandidge,  85  Va.   546. 
55  N.   E.   6a. 


474 


LAW     OF     WILLS. 


and  without  any  apparently  adequate  cause,  has  been  held  not 
admissible  as  tending  to  show  the  existence  of  an  insane  de- 
lusion with  reference  to  such  person  if  unsupported  by  other 
evidence  of  such  delusion.^^^ 

§400.     Declarations  of  testator. 

Any  declarations  of  testator  which  tend  to  show  the  con- 
dition of  his  mind  at  the  time  that  he  made  his  will  are  ad- 
missible to  determine  his  mental  capacity  at  that  date.^*^^ 
So,  statements  made  by  testator  relative  to  his  intention  of 
disposing  of  his  property  are  admissible,  not  for  the  purpose 
of  contradicting  the  contents  of  his  written  will,  but  to  show 
his  state  of  mind  at  the  time  that  he  executed  such  will."^^ 

Letters  written  by  testator  are  admissible,  not  as  evideiioe 
of  the  facts  stated  therein,  but  to  show  the  state  of  mind  of 
testatoy.^*^^  So  is  a  sworn  answer  in  a  suit  against  testatfix 
in  which  she  swore  that  she  was  weak  and  unable  to  read, 
write  or  transact  business  prior  to  the  date  of  the  wCU;^^^ 
and  so  are  entries  in  a  diarv  made  bv  testator"*^^ 


264  Riley  v.  Sherwood,  144  Mo. 
354;  McGovran's  Estate,  185  Pa.  St. 
203. 

Contra,  Manatt  v.  Scott,  106  lo. 
203. 

265  Coghill  V.  Kennedy,  119  Ala. 
641;  24  So.  459;  Ball  v.  Kane, 
1  Penne.  (Del.),  90.  ("I  did  not 
make  it.  Jimmie  and  the  old  wo- 
man made  it,"  was  the  declaration 
admitted)  ;  Barbour  v.  Moore,  4 
App.  D.  C.  535;  Mallery  v.  Young, 
94  Ga.  804;  American  Bible  Soci- 
ety V.  Price,  115  111.  623;  Reynolds 
V.  Adams,  90  111.  134;  Hill  v. 
Bahrns,  158  111.  314;  Manatt  v. 
Scott,  106  lo.  203 :  Bever  v.  Spang- 
ler,  93Io.  576;  Stephenson  v.  Steph- 
enson, 62  lo.  163;  Bates  v.  Bates, 
27  lo.  110;  Goldthorp's  Estate,  94 
lo.  336;  Lane  v.  Moore,  151  Mass. 
87;  Sheehan  v.  Kearney  (Miss.), 
21  So.  41  ;  Potter's  Will.  161  N. 
y.   84;    Waterman   v.    Whitney,    11 


N.  Y.  157;  Burns's  VVill,  121  X. 
Car.  336 ;  McTaggarr  v.  Thompson, 
14  Pa.  St.  149 ;  Mclmosh  v.  Moore, 

(Tex.    Civ.    App.)     1899;    53    S.    W. 

611;  Kirkpatrick  v,  Jenkins,  9fl 
Tenn.  85;  Barney's  Will,  71  Vt 
217. 

266  Scale  V.  Chambliss,  35  Ala. 
19;  Bundy  v.  McKnight,  48  Ind 
502;  Bever  v.  Spangler,  93  lo.  576; 
Estate  of  Lefever,  102  Mich.  568;. 
Hammond  v.  Dike,  42  Minn.  273; 
Prather  v.  McClelland,  76  Tex.  574. 

267  Bulger  V.  Ross,  98  Ala.  267 ; 
Slingoff  V.  Bruner,  178  111.  561: 
Harp  V.  Parr,  168  111.  459 ;  Wood- 
ward V.  Sullivan,  152  Mass.  470; 
In  re  Brunor,  47  N.  Y''.  S.  681 :  :vic- 
Ninch  V.  Charles,  2  Rich.  (S. 
Car.),  229:  Foster  v.  Dickerson,  64 
Vt.  233;  Blakeley's  Will,  48  Wis. 
294. 

26S  Manatt  v.   Scott,   106  lo.  203. 
2C9  Barber's  Estate,  63  Conn.  393. 


LAW     OF    WILLS.  475 

Under  this  general  rule  his  oral  declarations  which  tend  to 
show  his  condition  or  state  of  mind  at  the  time  that  he  made 
his  will  are  admissible  in  evidence.  For  this  purpose  it 
makes  no  difference  whether  testator's  declarations  were  made 
at  the  time  of  the  execution  of  the  will  or  at  other  times  be- 
fore or  after,  provided  that  the  time  was  so  near  to  the  time 
of  execution  that  the  declarations  offered  tend  to  show  testa- 
tor's mental  condition  at  that  time.*  The  declarations  of  tes- 
tator may  be  made  before  the  execution  of  the  will,^'^*^  or  they 
may  be  made  after  the  execution  of  the  will  in  question.^'^^ 

Previous  wills  executed  by  testator  when  sane  have  been 
held  to  be  admissible,  upon  the  theory  that  such  will  tends 
to  show  the  fixed  and  settled  purpose  of  testator,  and  any 
sudden  change  in  such  purpose  without  adequate  cause  may  be 
evidence  from  which  insanity  may  be  inferred ;  while  a  per- 
sistence in  a  purpose  formed  when  sane  may  be  evidence  that, 
until  the  time  of  the  execution  of  the  latest  will,  testator  re- 
mained sane."^^ 

This  theory  is  ignored  in  a  recent  Texas  case,  where  it  is 
said  that  on  an  issue  solely  as  to  mental  capacity  it  is  inad- 
missible to  introduce  a  previous  will  unless  it  was  drawn 
under  such  circumstances  as  make  it  admissible  as  a  declara- 
tion.^^^ 

The  declarations  of  testator  as  to  the  conduct  of  a  son,  made 

*Petefish  V.  Becker,  176  111.  448;  Will,    121    N.    Car.    336;    Kirkpat- 

Hill  V.  Bahrns,  158  111.  314;  Taylor  rick    v.    Jenkins's    Exr's,    96    Tenn. 

V.    Pegram,    151    111.    106;    Craig   v.  85. 

Southard,  148  111.  37.  272  Barlow    v.     Waters,     —     Ky. 

2T0Goodbar   v.    Lidikey,    136    Ind.  (1894);    28    S.   W.   785,    citing   and 

1;    Manatt   v.    Scott,    106    la.   203;  following  Harrison's  Will,  1  B.  Mon. 

Estate   of   Lefever,   102   Mich.   568;  (Ky.),    351;     Carrico    v.    Neal,     1 

Sheehan    v.    Kearney,    —    Miss. — ;  Dana  (Ky. ),  162;  to  the  same  effect 

21   So.  41 ;   Rambler  v.  Tryon,  7   S.  are    Hughes    v.    Hughes,     31     Ala. 

&  R.    (Pa.)    90;  In  re  Burns's  Will,  519       (overruling    Roberts    v.   Tra- 

121  N.  Car.  336;  Chappell  v.  Trent,  wick,  13  Ala.  68)  ;  Love  v.  Johnson, 

90   Va.    849.  12  Ired.    (X.  Car.),  355;   Taylor  v. 

271  Ball  v.  Kane,  1  Penne,   (Del.),  Pegram,    151    111.    106;    Nieman    v. 

90;    (Del.),  39  Atl.   778:   Dennis  v.  Schnitker,    181    111.   400;    Hammond 

Weekes,  51  Ga.  24;  Hill  v.  Bahrns,  v.  Dike,  42  Minn.  273. 

158    111.   314;    Sheehan  v.  Kearney,  273  Brown   v.    Mitchell,     87     Tex. 

—  Miss.  — ;    21    So.   41;    Pratte  v.  140;    88    Tex.    350. 
CofTman,  33  Mo.  71;    In    re   Burns's 


476  LAW     OF     WILLS. 

to  the  attorney  who  was  taking  the  instructions  of  testator 
for  drawing  up  his  will,  as  a  reason  for  disinheriting  such 
son,   do  not  show   an   insane   delusion. ^^'^ 

As  has  been  stated,  the  evidence  must  tend  to  show  testator's 
condition  at  the  time  that  he  executed  his  will.^'''^  In  every  case 
the  declarations  offered  in  evidence  must  be  such  as, 
in  view  of  the  other  evidence  in  the  case,  tend  to  es- 
tablish the  state  of  mind  of  testator  at  the  time  that  he  made 
the  will  in  question.  !N"o  hard  and  fast  rule  can  be  laid  down 
as  to  the  distance  in  point  of  time  from  the  date  of  the  will 
the  declarations  may  be.  In  one  case  declarations  made  five 
or  six  years  before  the  date  of  the  will  as  to  what  testator 
meant  to  do  with  his  property  were  held  to  be  too  remote.^'^*' 
The  declaration  must,  moreover,  be  of  such  sort  as  to  tend  to 
show  the  state  of  mind  of  the  testator  at  the  time  that  he 
made  the  will.  Thus,  where  testator  had  once,  years  before 
the  date  of  his  will,  said  that  the  law  made  a  good  enough 
will  for  him,  and  no  other  evidence  of  his  intention  ap- 
peared, such  declaration  was  held  inadmissible.^^''^  The  dec- 
larations of  testator  made  at  least  seventeen  years  before  the 
execution  of  his  will  are  inadmissible.^"^  And  in  another  ease, 
declarations  made  three  years  after  the  date  of  the  will,  which 
did  not  concern  the  mental  ea])acity  of  testatrix  at  the  date 
of  the  will,  were  held  to  be  inadmissible.^'''^ 

§401.     Declarations  of  legatees,  devisees,  and  contestants. 

It  is  so  well  settled  as  a  principle  of  evidence  that  declara- 
tions which  make  for  the  interest  of  declarant  are  not  admis- 
sible upon  the  sole  ground  of  their  being  his  declarations,  that 
accordingly,  without  discussion,  it  may  be  assumed  that  the 
declarations  of  a  devisee  or  legatee  under  a  will,  which  decla- 

274  Kidney's    Will,    33    N.    B.    9.       397,   followed   in   Pyle  v.   Pyle,    158 

275  See  Sec.  394.  111.  289 ;  a  similar  ruling  was  made 
276Bonnemort  v.  Gill,   LGS   Mass.       in  Hill  v.  Bahrns,  158  111.  314. 

493;    Langford's    Estate,    108    Cal.  278  Langford's    Estate,     108     Cal. 

608      (declarations    made    seventeen  G08. 

years  before  held  too  remote).  2-9  Crocker  v.   Chase,  57  Vt.  413. 
277  Rutherford   v.   Morris,   77    111. 


LAW     OF     WILLS. 


477 


rations  are  to  the  effect  that  testator  was  competent  to  make 
a  will,  are  inadmissible. 

The  question  of  the  admissibility  of  the  declarations  of  a 
beneficiary  nnder  the  will,  which  declarations  are  to  the  effect 
that  testator  was  insane  at  the  time  of  making  the  will,  or 
otherwise  was  incompetent,  is  a  matter  of  considerable  com- 
plexity. It  is  held  that  declarations  made  before  any  interest 
arose  nnder  the  will  by  one  who  after  the  time  of  such  decla- 
rations becomes  a  beneficiary,  are  inadmissible  upon  the  famil- 
iar principle  of  law  that  snch  declarations  were  not  adverse 
to  his  interest  when  they  were  made.^**^  The  execution  of  the 
will  is  pointed  out  as  the  time  when  the  interest  arises.  "These 
declarations  may  have  been  made  before  the  execution  of 
the  will,  and  therefore  at  a  time  when  the  legatees  whose 
interests  arise  out  of  the  will  had  no  interest  to  be  affected 
by  the  declarations."  -^^ 

Where  declarations  adverse  to  the  competency  of  testator 
were  made  by  a  devisee  or  legatee  after  their  interest  arose,  the 
only  objection  to  their  admissibility  is  that  the  declarations  of 
one  devisee  or  legatee,  even  if  admissible  against  himself,  should 
not  be  admitted  against  other  devisees  or  legatees  whose  in- 
terests are  separate  from  those  of  the  one  who  made  the  ad- 
mission. Accordingly,  where  the  legatee  is  the  sole  benefici- 
ary under  the  will,  his  declarations  aiid  admissions  adverse 
to  the  competency  of  the  testator,  and  made  after  legatee's 
interest  arose,  are  held  to  be  admissible.^^^  But  where  there 
are  several  devisees  or  legatees  whose  interests  are  several, 
and  not  joint,  the  weight  of  authority  is  that  the  declarations 
and  admissions  of  one  of  these  devisees  and  legatees  are  not 
admissible,  as  if  admitted  they  would  operate  to  the  prejudice 

280  7,^  re  Ames's  Estate,  51  lo.  2S2  Egbers  v.  Egbers,  177  111.  82; 
596;  Thompson  v.  Thompson,  13  0.  Wallis  v.  Luhring.  134  Ind.  447; 
S.  356;  Burton  v.  Scott,  3  Rand.  34  N.  E.  231;  Brick  v.  Brick,  66 
(Va.),  399.                                                     N.  Y.  144. 

281  Thompson  v.  Thompson,  13 
O.  S.  356 ;  Burton  v.  Scott,  3  Rand. 
(Va.),    399. 


478  lAw  OF  WII.LS. 

of  the  other  devisees.-^^  But  in  some  jurisdictions  the  decla- 
rations of  one  of  several  legatees  are  admissible  whenever 
similar  declarations  made  by  a  sole  legatee  would  be  admis- 
sible.-^^ 

When  the  feeling  of  the  contestant  towards  testator  is  mate- 
rial, the  declarations  of  the  contestant  expressing  such  feelings 
are  admissible,  even  if  it  is  not  shown  that  testator  was  in- 
formed of  such  declarations.^^^ 

§402.     Adjudication  of  insanity  and  record  of  guardianship. 

We  have  already  seen  that  one  adjudicated  insane  and 
under  guardianship  may  be  capable  of  making  a  valid  wall, 
but  that  such  guardianship  is  prima  facie  evidence  of  his  in- 
capacity. Accordingly,  the  record  establishing  the  existence 
of  the  guardianship  on  the  ground  of  insanity,  or  adjudging 
testator  insane,  is  admissible  in  evidence,  and  makes  a  prima 
facie  case  of  testator's  incompetency  from  the  date  of  the 
guardianship  and  during  its  continuance.-^^  And  very  clear 
evidence  is  required  to  overthrow  the  presimaption  of  insan- 
ity arising  from  such  an  adjudication.-^''' 

But  the  record  of  a  guardianship  which  did  not  exist  for 
several  years  after  the  will  is  inadmissible  to  show  a  want 
of  mental  capacity  at  the  date  of  making  the  will.^^^ 

283  Blakely    v.    Blakely,    33    Ala.  284  Williamson  v.  Xabers,   14  Ga. 

611;      Appeal     of    Livingstone,     63  28G;     Beall    v.    Cunningham,    1    B. 

Conn.    68;     Campbell    v.    Campbell,  Mon.     (Kv.),    399;    Peebles   v.    Ste- 

138   111.    612;    McMillan   v.   McDill,  vens,  8  Rich.    (S.  Car.),  198. 

110    111.    47;    Roller    v.    Kling,    150  285  Stevens    v    Leonard,  154    Ind. 

Ind.    159;     Phelps    v.    Hartwell,    1  67;   56  N.  E.  27. 

Mass.   71 ;    Shailer  v.  Bumstead,   99  286  Estate     of    Johnson,    57    Cal. 

Mass.    112;    Estate   of   Lefever,    102  529;    Harrison   v.   Bishop,    131    Ind. 

Mich.  568;  Thompson  v.  Thompson,  161;    In    re    Fenton's    Will,    97    lo. 

13   0.   S.  356;   Roush  v.   Wensel,   15  192;    Rice    v.    Rice,    50    Mich.    448; 

Ohio  C.  C.  133;  Titlow  v.  Titlow,  54  Hamilton  v.  Hamilton,  10  R.  I.  538. 

Pa.  St.  216;   Fairchild  v.  Bascomb,  287  Stevens    v.    Stevens,    127    Ind. 

35  Vt.  398 ;  Whitelaw  v.  Whitelaw's  560. 

Adm'r,  96  Va.    712;    32    8.  E.  4.58 ;  2ss  Entwistle   v.    Meikle.    180    111. 

In  re  Goldthorp's  Estate,  94  lo.  336 ;  9. 
Parsons  v.  Parsons,  66  lo.  754;  Dye 
V.  Young,   55  lo.  433 ;   In  re  Ame? 
51  lo.  596. 


LAW     OF     WILLS. 


479 


In  some  jurisdictions  it  is  held  that  an  adjudication  of  lu- 
nacy is  conclusive  as  to  the  mental  condition  of  testator  at  the 
date  of  the  adjudication,  and  that  only  evidence  to  show  a  cure 
after  such  adjudication  is  admissible.^^^ 

The  record  of  discharge  from  a  guardianship  of  insanity  as 
cured  i&  further  only  prima  facie  evidence  of  such  cure.^^" 

§403.     Miscellaneous  questions  of  evidence. 

Evidence  of  the  opinions  of  testator's  sanity  entertained  by 
persons  who  are  not  called  as  witnesses  is  hearsay  and  inad- 
missible.^^^  Thus,  evidence  that  the  bo^'s  on  the  street  made 
fun  of  testatrix  was  held  inadmissible."^^ 

The  photograph  of  testator  is  not  admissible  on  the  issue 
of  capacity.^^^ 

Since  an  insane  delusion  is  not  based  on  evidence,  the  ques 
tion  of  whether  a  peculiar  belief  of  testator's  had  any  apparent 
fomidation  in  fact  or  not  is  material,  and  evidence  on  that  point 
is  admissible.^^'*  Thus,  where  testator's  alleged  insane  delusion 
was  as  to  his  wife's  infidelity,  the  evidence  of  the  alleged  adul- 
terer as  to  her  innocence  was  admissible.^^^ 


IV— EVIDENCE   OF   UNDUE   INFLUENCE. 


§404.     Evidence   of  undue  influence    largely   circumstantial. 

As  undue  influence  is  generally  employed  surreptitiously,  the 
evidence  by  which  it  is  established  is,  in  a  very  large  degree, 

289  In  re  Hoopes's  Estate,  174  Pa.  293  Varner  v.  Varner,  IG  Ohio  Cir. 

St.  373.  Ct.  38G. 

'-ooFenton's  Will,  97  la.  192.  204  Titus     v.     Gage,     70     Vt.    13: 

291  Townsend  v.  Peperell,  99  Mass.  Burkliart  v.   Gladish,   123  Ind.   337. 

40;  Brinkman  v.  Paieggesick,  71  Mo.  295  Burkhart  v.  Gladish,   123  Ind. 

553;   Vance  v.  Upson,  66  Tex.  476.  337. 

292/11  re  Hine,  G8  Conn.  551. 


480 


LAW    OF    WILLS. 


circumstaiitial,^'^'^  and  the  question  of  undue  iniluence  is  espe- 
cially one  for  the  jurj.^^^ 

§405.     Burden  of  proof. 

Upon  the  issue  of  undue  influence  the  burden  of  proof,  as 
established  by  the  weight  of  authority,  is  upon  the  party  alleg- 
ing it;  that  is,  upon  the  contestant.  In  this  sense  the  burden 
of  proof  is  the  duty  of  establishing  the  issue  by  a  preponder- 
ance of  the  evidence.^^^ 

Undue  influence  is  not  presumed  in  absence  of  evidence  to 
warrant  such  presumption. ^^^  Whe7-e  the  evidence  discloses 
nothinc:  more  than  a  motive  to  exert  ivndue  influence  and  an 


290  "From  the  natme  of  the  case, 
the  evidence  of  undue  influence  is 
mainly  circumstantial.  It  is  not 
unsually  exercised  openly  in  the 
presence  of  others  so  that  it  can 
be  directly  proven.  But  the  cir- 
cumstances relied  on  to  show  it, 
must  be  such  as,  taken  altogether 
point  unmistakably  to  the  fact  that 
the  mind  of  the  testator  was  sub- 
jected to  that  of  some  other  per- 
son so  that  the  will  is  that  of  the 
latter  and  not  of  the  former."  Stor- 
er's  Will,  28  Minn.  9,  quoted  in 
Hess's  Will,  48  Minn.  504;  Camp- 
bell V.  Barrera,  Tex.  Civ.  App.  32 
S.   W.   724. 

29T  Caven  v.  Agnew,  186  Pa.  St. 
314. 

298  Fitch's  Estate,  26  N.  S.  195; 
Chandler  v.  Jost,  90  Ala.  59G; 
Bulger  v.  Ross,  96  Ala.  267 ;  Liv- 
ingstone's Appeal,  63  Conn.  68; 
Rockwell's  Appeal,  54  Conn.  119; 
Allison's  Estate,  104  la.  130:  Web- 
ber V.  Sullivan,  58  la.  260 ;  Johnson 
V.  Stevens,  95  Ky.  128;  Barlow  v. 
Waters,  —  Ky.  — ;  28  S.  W.  785; 
Sheehan  v.  Kearney,  —  Miss.  — ; 
21  So.  41 ;  35  L.  R.  A.  102 ;  Prentis 


V.    Bates,    93    Mich.    234;    17    L.    R 
A.   494;    Gay   v.    Gillilan,     92    Mo 
250;    Maddox   v.   Maddox,    114   Mo 
35;    Carl    v.    Gabel,    120    Mo.    283 
Berber et  v.  Berberet,   131  Mo.   399 
Morton   v.    Heidorn,    135    Mo.    608 
Doherty   v.   Gilmore,    136   Mo.   414 
Gordon    v.    Burris,    141    Mo.    602 
Riley    v.    Sherwood,    144    Mo.    354 
Tibbe    v.    Kamp     (Mo.),    54    S.    W 
879;     55    S.    W.    440;     Stewart    v 
Stewart,   56   X.  J.   Eq.   761 ;    Salter 
V.  Ely,  56  N.  J.  Eq.  357 ;  Runyan  v. 
Price,    15    O.    S.    1;    86    Am.    Dec. 
459;  Messner  v.  Elliott,  184  Pa.  St. 
41;     Yorke's    Estate/  185    Pa.    St. 
61 ;  McGraw's  Will,  41  N.  Y.  Supp. 
481 ;  Van  Ormen  v.  Van  Ormen,  58 
Hun,   606;    Seebrock  v.   Fedawa,   30 
Neb.  424 ;  Chappell  v.  Trent,  90  Va. 
849;   McMaster  v.  Scriven,  85  Wis. 
162;    Armstrong   v.    Armstrong,    63 
Wis.    162. 

299  Post  V.  Mason,  91  N.  Y.  539; 
Baldwin  v.  Parker,  99  Mass.  79; 
Kei'rigan  v.  Leonard,  N.  J.  Eq. ;  8 
Atl.  503;  Rutherford  v.  Morris,  77 
111.  397;  Carpenter  v.  Hatch,  64  N. 
II.   573;    15  Atl.  219. 


LAW     OF     WILLS.  481 

opportunity  to  exert  it,  there  is  a  failure  of  proof  of  undue 
influence  ;^*^^  and  so,  where  the  circumstances  of  execution, 
though  suspicious,  were  perfectly  consistent  with  a  freedom, 
from  undue  influcnce.^'^^ 

The  doctrine  that  the  burden  of  proof  should  rest  upon  con- 
testant has  been  sharply  criticised  by  some  of  our  ablest  text- 
books. But,  while  undue  influence  in  jurisdictions  where  the 
only  issue  is  devisavit  vel  non  assumes  the  form  of  a  traverse, 
in  reality  it  admits  the  capacity  and  formal  execution  and  relics 
upon  new  matter.  In  this  point  it  is  like  a  defense  of  duress  in 
contract  law,  u]:)on  which  issue  there  is  no  doubt  that  th(3 
burden  is  upon  the  party  alleging  it. 

The  only  consistent  theory  upon  which  the  doctrine  that  the 
burden  of  proof  rests  ui)on  the  parties  alleging  it  could  be  crit- 
icised is  this :  The  right  to  make  a  will  depends  on  statute. 
The  class  specified  as  competent  to  make  a  will  is  that  of  per- 
sons of  full  age,  sound  mind  and  memory  and  not  under  re- 
straint. It  might  be  urged  that  a  party  offering  a  will  must 
establish  every  fact  necessary  to  bring  the  case  within  the  wills 
act. 

Similar  reasoning  has  been  employed  to  uphold  the  theory 
that  proponent  must  establish  the  sanity  of  testator,  but  never, 
as  far  as  observed,  has  it  been  employed  in  cases  of  undue  in- 
fluence to  place  the  burden  of  proof  upon  proponents. 


§406.     Shifting  the  burden  of  proof. 

But  wliilo  the  courts  are  unanimous  upon  this  proposition, 
as  a  fundamental  rule,  it  is  sometimes  said  that,  when  circum- 
stances of  suspicion  exist,  the  burden  shifts  to  the  beneficiaries 
imder  the  will  to  show  that  there  was  no  undue  influence. ^''^ 

sooMcFadin    v.    Catron,    138    Mo.  Eq.  428;    Fritz  v.  Turner,  46  N.  J. 

197;    Doherty  v.   Gilmore,    13fi   Mo.  Eq.    515. 

414;    Maddox    v.    Maddox,    114   Mo.  302  Tyrrel      v.      Painton      (1894), 

35;    Eedlow's    Will,    67    Hun,    408;  Prob.  151 ;  6  Rep.  540,  citing  Barry 

Phalen's    Will,    47    N.    Y.     S.    44;  v.  Butlin,  2  Moore  P.  C.  480;   Fui- 

McMaster  v.   Scriven,  85  Wis.   162;  ton  v.  Andrew,  L.  R.   7  H.  L.  448; 

Trezevant    v.    Rains,    85    Tex.    320.  Brown    v.    Fisher,    63    Law   T.     (N. 

301  Howell    V.    Taylor,    50    X.    J.  S.),    405;    Slieehan   v.    Kearney,   — 


482  LAW     OF     WILLS. 

Thus,  in  a  recent  Iowa  case  it  was  said  that  the  burden  of 
proof  does  not  shift  to  proponents  until  evidence  is  introduced 
sufficient  "to  warrant  the  presumption  that  the  will  was  not  the 
free  act  of  testator,  as  in  a  case  like  that  at  bar,  that  the  con- 
fidential agent  and  legatee  Avas  actually  instrumental  in  the 
dictation  and  procurement  of  the  execution  of  the  will."* 

Thus,  it  has  been  held  that  where  the  evidence  discloses  that 
a  beneficiary  under  a  will  to  the  exclusion  of  other  children  of 
testator  was  a  son  who  occupied  a  relation  of  trust  and  especial 
confidence  Avith  his  father,  the  testator,  a  presumption  arises 
that  such  Avill  was  obtained  by  undue  influence.^°^  A  like  pre- 
sumption arises  where  the  evidence  shows  that  the  devise  was 
made  entirely  on  account  of  the  confidential  relations  between 
testatrix  and  doAnsee.^*^"* 

It  is  even  said  that  the  fact  that  the  beneficiaries  procured 
the  Avill,  and  were  in  a  position  to  exercise  undue  influence, 
shifts  the  burden  to  them  to  shoAv  that  there  Avas  no  undue  in- 
fluence.^°^  So,  AAdiere  the  beneficiaries  take  an  active  part  in 
preparing  the  Avill,  the  burden  is  said  to  be  shifted  upon  them 
to  shoAV  an  absence  of  undue  influence. ^*^^ 

But  thf;  facts  that  testatrix  Avas  eighty-six  years  old,  and  made 
a  Avill  in  faA^or  of  her  niece,  Avhose  husband  was  her  confidential 
adviser,  are  not  enough  to  shift  the  burden  of  proof  Avhere  the 
evidence  shoAvs  affirmatiA^ely  that  testatrix  had  a  clear  under- 
standing of  the  transaction,  and  the  husband  of  the  niece  Avas 
absent  Avhen  the  Avill  Avas  made.^^^ 

Where  the  CAddence  fails  to  show  the  existence  of  confidential 
relations  between  proponents  and  testator,  it  is  error  to  charge 

Miss — ;  21  So.  41;  Hegney  v.  Head,  *  Denning  v.  Butcher,  91  lo.  425. 

126   Mo.    619;    McFadin   v.   Catron,  303  Miller   v.   Miller,    187    Pa.    St. 

120   Mo.   252;    138   Mo.   197;    Stew 

art  V.   Stewart,   56  N.  J.   Eq.   761 

Claffey   v.    Ledwith,    56    N.    J.    Eq 

333;    Dale   v.    Dale,    38    N.    J.    Eq 

274;    Waddington  v.   Buzby,   43   N 

J.  Eq.  154;  45  N.  J.  Eq.  173;  Mil 

ler  V.  Miller,  187  Pa.  St.  572 ;  Chap 

pel  V.  Trent,  90  Va.  849;  Whitelaws 

V.  Sims,  90  Va.  588. 


572. 

304Messner    v.    Elliott,    184    Pa. 
St.  4L 

305  Wright  V.  Jewell,  9  Manitoba, 
607. 

306  Chandler  v.  Jost,  96  Ala.  596. 
307Yorke's    Estate,    185    Pa.-    St. 

61. 


LAW     OF     WILLS. 


483 


that  the  burden  of  proof  on  the  issue  of  undue  influence  is  on 
proponents.^'^* 

The  objection  to  this  form  of  stating  the  rule  is  given  be- 
fore.^"^  In  tlie  technical  sense  the  burden  of  proof  never  shifts. 
The  law  and  the  nature  of  tlie  issue  determine  upon  which  party 
the  burden  of  proof  rests  at  the  outset,  and  this  never  shifts 
during  the  progress  of  the  trial. 

What  is  really  meant  by  this  form  of  statement  is  this :  If 
the  evidence  of  execution  introduced  by  proponent  does  not 
of  itself  tend  to  establish  undue  influence,  proponent  is  not 
obliged  to  go  further  and  offer  affirmative  evidence  that  there 
was  no  undue  influence.  If,  however,  proponent's  evidence 
tends  directly  to  show  that  there  was  undue  influence,  or  es- 
tablishes facts  from  which  undue  influence  may  be  inferred, 
proponent  must,  in  order  to  go  before  the  jury,  introduce  other 
and  further  evidence  to  disprove  the  existence  of  undue  influ- 
ence. If,  when  he  rests,  the  uncontradicted  evidence  introduced 
by  proponent  establishes  imdue  influence,  he  may  be  non-suited, 
or  the  jury  may  be  directed  to  return  a  verdict  against  him, 
in  accordance  with  the  method  of  procedure  prevailing  in  that 
jurisdiction.  If  proponent's  evidence  is  conflicting,  it  may  be 
considered  by  the  jury  together  with  the  evidence  introduced  by 
contestant,  including  all  presumptions  which  may  be  drawn 
from  the  evidence  introduced.  If  u})on  the  whole  evidence,  in- 
cluding such  presumptions,  the  preponderance  of  evidence  is 
with  contestants,  they  will  prevail;  otherwise  proponents  will 
prevail. 

The  so-called  shifting  of  the  burden  of  proof  is  therefore 
really  the  raising  of  presumptions  which  must  be  overcome  by 
the  proponent  in  order  to  prevent  contestant  from  prevailing, 
by  establishing  the  issue  on  his  part  by  a  preponderance  of  the 
evidence.  From  this  standpoint  the  subject  can  be  best  con- 
sidered under  the  head  of  presumptions  in  the  following  sec- 
tions. 

sosTibbe   v.    Kanip,    Mo.    (1899),  309  See  Sec.  3G9. 

54    S.   W.   879;     (1900),   55    S.    W. 
440. 


484  LAW     OF     WILLS. 

S407.  Extent  of  burden. 

o 

The  burden  of  proof  is  never  greater  upon  the  issue  of  undue 
influence  than  the  duty  of  establishing  the  issue  by  a  prepon- 
derance uf  the  evidence.^^^  It  is  therefore  error  to  charge  the 
jury  that  in  order  to  avoid  the  will  the  circumstances  of  exe- 
cution must  be  inconsistent  with  any  hypothesis  except  that  of 
undue  influence  ;^^i  and  after  the  court  has  charged  the  jury 
that,  on  proof  of  due  execution  and  capacity  of  testator,  the 
will  is  presumed  to  be  his  free  and  voluntary  act,  it  is  error  to 
add  that  undue  influence  must  be  "proven  to  your  satisfaction 
by  a  preponderance  of  evidence,"  as  this  doubles  the  burden 
upon  contestants  by  giving  proponents  the  benefit  of  a  presimip- 
tion  of  fact  as  a  presumption  of  law.^^^ 

In  some  cases  the  extreme  rule  is  applied  that  the  contestant 
must  adduce  such  evidence  that  no  hypothesis  except  that  of 
undue  influence  will  be  consistent  with  the  evidence  which  the 
jury  believes.^^^ 

§408.     Presumptions In  general. 

Presumptions  of  undue  influence  are  said  to  arise  out  of  cer- 
tain combinations  of  fact.  These  presumptions  are  presump- 
tions of  fact  merely,  and  not  presumptions  of  law,^^"*  and  it  is 
error  for  the  court  to  charge  the  jury  that  a  certain  state  of 
facts  creates  a  presumption  of  undue  influence,  and  that  unless 
the  adversary  party  rebuts  this  presumption  the  jury  must  find 
against  him.^^^ 

310  Gay  V.  Gillilan,  92  Mo.  250.  3i2  Morton   v.    Heidorn,    135    Mo. 

311  Bush  V.  Delano,  11.3  Mich.  321.       608. 

The     earlier     case     of     Maynard  3i3  Adams  v.  McBeath,  27  Can.  S. 

V.   Vinton,    59   Mich.    139,   had   fol-       C.   13. 

lowed    the    language    used    in    the  3i4  Morton    v.    Heidorn,    135    Mo. 

English  cases  and  had  held  that  to       608 :    Patten    v.    Cilley,    67    N.    H. 
establish  undue  influence  the  proof       520;    Mauley's   Ex'r   v.   Staples,   65 
must  be  inconsistent  with  any  other      Vt.   370. 
hypothesis.  3i5  See    cases    cited    in    preceding 

This    case   was   quoted    in    Sever-       note, 
ance  v.  Seswance,  90  Mich.  417,  but 
was   specifically   overruled   in   Bush 
V.  Delano,  supra. 


LAW     OF     WILLS. 


485 


A  recent  Virginia  case  sccnis  to  hold  a  different  opinion, 
and  to  regard  these  presumptions  as  prima  facie  presumptions 
of  law.  The  evidence  showed  that  testatrix  was  eighty-eight 
years  old,  and  that  she  had  made  a  will  totally  different  from 
her  previous  intentions,  and  in  favor  of  persons  in  confidential 
relation  toward  her.  The  trial  court  refused  to  charge  that  if 
these  facts  were  found  to  be  true  they  raised  a  violent  presump- 
tion of  undue  influence,  to  be  overcome  only  by  satisfactory 
"testimony."     This  refusal  was  held  to  be  error.^^^ 

These  presumptions  are  best  considered  in  connection  with 
the  relations  between  the  testator  and  the  beneficiaries  out  of 
which  the  presumptions  arise,  or  which  constitute  part  of  the 
combinations  of  fact  out  of  which  the  presumptions  arise.  In 
order  to  save  repetition,  therefore,  each  class  of  relations  be- 
tween testator  and  beneficiaries  will  be  considered  first  with 
regard  to  the  presumption,  if  any,  arising  out  of  the  relation- 
ship itself,  and  second  with  regard  to  the  additional  facts  which 
may,  in  connection  with  such  relationship,  give  rise  to  a  pre- 
sumption of  undue  influence,  or  strengthen  a  presumption  al- 
ready raised. 

^409.     Parent  and  child. 

The  fact  that  the  testator  and  beneficiary  bore  the  relation 
of  parent  and  child  does  not  of  itself  give  rise  to  any  presump- 
tion of  undue  influence.^^'^  This  rule  applies  both  to  wills  made 
by  parents  in  favor- of  their  children,^^^  and  to  wills  made  by 
children  in  favor  of  their  parents.^^^  It  also  applies  to  a  son- 
in-law  who  is   a  beneficiary  under  the  will  of  his  father-in- 

316  Whitelaw's   Executor  v.    Sims,       437 ;    Foster's    Appeal,    142    Pa.    St. 


90    Va.     588,     citing     Hartman     v 
Strickler,  82  Va.  225. 

317  Dale's  Appeal,  57  Conn.  127 
Teegarden  v.  Lewis,  145  Ind.  98 
Lamb  v.  Lippencott,  115  Mich.  611 
Cash  V.  Lust,  142  Mo.  630;  Ayl 
ward  V.  Briggs,  145  Mo.  604;  47'  S 
W.  510;  In  re  Martin,  98  N.  Y, 
103:   Coleman's  Estate,  185  Ta.  St 


62. 

31S  Bundy  v.  McKnight,  48  Ind 
502;  Lamb  v.  Lippencott,  115  Mich 
611;  Cash  v.  Lust,  142  Mo.  630 
\yhite  V.   Starr,   47   N.   J.    Eq.   244 

319  7m  re  Andrews,  33  N.  J.  Eq 
514;  Coleman's  Estate,  185  Pa.  St 
437. 


486 


LAW    OF    WILLS. 


law  ;^-^    and  to  brothers  and  sisters  who  are  beneficiaries  under 
the  will  of  each  other,^^^  and  to  members  of  the  same  household 

generally.^"^ 

The  fact  that  the  beneficiary  in  such  relationship  transacted 
business  for  the  testator  does  not  raise  a  presumption  of  undue 
influence.^2^  go  the  mere  fact  that  a  son  lived  with  his  par- 
ents, and  managed  their  property  for  them,  does  not  of  itself 
make  out  even  a  privia  facie  case  of  undue  influence.^^'*  Nor 
does  the  fact  that  one  of  such  parties  suggested  and  urged  the 
testator  to  make  such  will,  unless  such  urging  amounted  to  ac- 
tual undue  influence.^^^G  ^^^j.  jogg  the  fact  that  the  will  did 
not  distribute  the  property  equally  among  the  natural  objects 
of  testator's  bounty  raise  a  presumption  of  undue  influence  in 
such  relations.^"^*^  Indeed,  from  the  adjudicated  cases,  it  may 
safely  be  laid  down,  as  a  general  rule,  that  in  such  relations  no 
presumption  of  undue  influence  arises,  but,  on  the  contrary, 
the  evidence  must  be  even  stronger  to  establish  actual  undue  in- 
fluence where  the  beneficiary  is  so  close  a  relation  of  testator 
than  where  beneficiary  is  a  stranger.^-^  But,  where  a  child  of 
testator  also  is  his  confidentinl  agent,  the  rule  of  presumption 
as  to  confidential  agents  applies,  and  not  the  rule  as  to  parent 
and  child,328  and  where  a  child  of  testator  is  guilty  of  such 


320  Lamb  v.  Lippeneott,  115  Mich. 
611,  citing  Maynard  v.  Vinton,  59 
Mich.  139;  Severance  v.  Severance, 
90  Mich.  417. 

321  In  re  McDevitt,  95  Cal.   17. 

322  Doherty  v.  Gilmore,  136  Mo. 
414;  McMaster  v.  Scriven,  85  Wis. 
162. 

323  Lamb  v.  Lippeneott,  115  Mich. 
611;  Cash  v.  Lust,  142  Mo.  630; 
Aylward  v.  Briggs,  145  Mo.  604; 
47  S.  W.  510. 

324  Aylward  v.  Briggs,  145  Mo. 
604 :  47  S.  W.  510 ;  Meats  v,  Mears, 
15  0.  S.  90. 

325  Harrison's  Will.  1  B.  Mon. 
(Kv.),  351:   Gilreath  v.  Gilreath,  4 


Jones  Eq.  (N.  Car.), 142;  Coleman's 
Estate,  185  Pa.  St.  437;  Woodward 
V.  James,  3  Strobh  (S.  Car.),  552; 
Hartman  v.  Striekler,  82  Va.  225. 
320  McLane's  Estate,  21  D.  C.  554; 
McFadin  v.  Catron,  120  Mo.  252; 
Myers  v.  Hauger,  98  Mo.  433 ;  Mad- 
dox  V.  Maddox,  114  Mo.  35:  Pen- 
syl's  Estate,  157  Pa.  St.  465;Kaugh- 
man  v.  Caughman,  49  S.  Car.  159; 
Kerr  v.  Lunsford,  31  W.  Va.  660; 
Mears  v.  Mears,   15  O.   S.  90. 

327  Dale's  Appeal,  57   Ccnn.   127: 
Lamb  v.  Lippeneott.  115  Mich.  611. 

328  Miller   v.   Miller,    187    Pa.   St. 
572;    41    Atl.   277. 


LAW     OF     WILLS. 


487 


fraud^^^  or  force  and  violence^"^  as  would  amount  to  actual 
undue  influence  in  a  stranger,  it  is  none  the  less  undue  influence 
because  of  the  relationship.  And  where  the  evidence  tended  to 
show  actual  undue  influence,  and  further,  that  the  brother  of 
testator,  who  took  under  the  will,  was  instrumental  in  having 
the  will  dra^vn,  and  was  present  at  its  execution,  the  rules  re- 
lating to  a  beneficiary  who  drafts  the  will  apply,  rather  than 
the  rules  relating  to  brothers,  and  a  jDresun^jtion  of  undue  in- 
fluence arises.^^^ 

§410.     Husband  and  wife. 

1^0  presumption  of  undue  influence  arises  where  the  bene- 
ficiary is  either  the  husband  or  wife  of  testator  on  account  of 
such  relationship  f^^  nor  does  the  fact  that  the  beneficiary  in 
such  relationship  urged  and  solicited  testator  to  make  such 
will  create  a  presumption,^^^  even  where  beneficiary  had  great 
and  continuous  influence  over  testator.^^^ 


329  Jones  V.  Simpson,  171  Mass. 
474;  50  N.  E.  940. 

330  Capper  v.  Capper,  172  Mass. 
262;  Dale  v.  Dale,  38  N.  J.  Eq. 
274;  Moore  v.  Blauvelt,  15  N.  J. 
Eq.  3G7. 

331  Boisaubin  v.  Boisaubin,  51  N. 
J.  Eq.  252 ;  a  similar  case  is  Lyons 
V.  Campbell,  88  Ala.  402. 

332  Bulger  V.  Ross,  98  Ala.  267 ; 
Herwick  v.  Langford,  108  Cal.  608; 
Orth  V.  Orth,  145  Ind.  184;  145 
Ind.  206;  32  L.  R.  A.  298,  308; 
Gwin  V.  Gwin,  —  Ida.  — ;  48  Pac. 
295;  Small  v.  Small,  4  Me.  220; 
Pierce  v.  Pierce,  38  Mich.  412;  De- 
foe V.  Defoe,  144  Mo.  458;  Rankin 
V.  Rankin,  61  Mo.  295;  Black  v. 
Foljambe,    39    N.    J.    Eq.    234. 

333  Herwick  v.  Langford,  108  Cal. 
608;  Gwin  v.  Gwin,  —  Ida.—  ;  48 
Pac.  295;  Black  v.  Foljambe,  39 
N.  J.  Eq.  234;  Hughes  v.  Murtha, 
32  N.  J.  Eq.  288 ;  Lide  v.  Lide,  2 
Brev.    (S.  Car.).  403. 

334pit.rwick  V.  Langford,  108  Cal. 


608;  Meeker  v.  Meeker,  75  111.  260; 
Small  V.  Small,  4  Me.  220;  Storer's 
Will,  28  Minn.  9;  Peery  v.  Peery, 
94  Tenn.  328;  McClure  v.  McClure, 
86  Tenn.  173;  Smith  v.  Harrison, 
2  Heis.  (Tenn.).  230:  Simerly  v. 
Hurley,  9  Lea     (Tenn.),  711. 

"There  is  no  legal  presumption 
against  the  validity  of  any  pro- 
vision which  a  husband  may  make 
in  a  wife's  favor,  for  she  may  justly 
influence  the  making  of  her  hus- 
band's will  for  her  own  benefit 
or  that  of  others,  so  long  as  she 
does  not  act  fraudulently  or  extort 
benefits  from  her  husband  when  he 
is  not  in  condition  to  exercise  his 
faculties  as  a  free  agent."  Latham 
v.  Udell,  38  Mich.  2.38,  cited  and  fol- 
lowed In  re  Langford,  108  Cal.  608; 
also  citing  Hughes  v.  ]\Iurtha,  32 
N.  J.  Eq.  288;  Rankin  v.  Ran- 
kin, 61  Mo.  295;  Nelson's  Will, 
39  Minn.  204;  and  see  Richmond's 
Appeal,  21  Am.  St.  R.  95. 


488  LAW    OF    WILLS. 

It  is,  indeed,  not  even  correct  to  say  that  beneficiary  must 
use  such  a  degree  of  solicitation  as  woukl  amount  to  undue  in- 
fluence if  exerted  by  a  stranger,  in  order  to  constitute  undue  in- 
fluence. The  law  recognizes  the  fact  that  on  account  of  the 
closeness  and  intimacy  of  such  relationship,  like  that  of  parent 
and  child,  the  parties  thereto  should  each  be  allowed  great  free- 
dom in  urging  mutual  claims  upon  the  consideration  of  the 
other.  Accordingly  the  husband  is  allowed  somewhat  greater 
latitude  in  persuading  his  wife  to  make  a  will  in  his  favor  than 
would  be  permitted  to  a  stranger,=^^^  and  on  account  of  the 
supposed  difference  of  natural  influence  of  the  two  sexes  the 
wife  is  allowed  still  gi'cater  latitude.^^^"  When,  how^ever,  the 
will  of  testator  is  actually  overcome,  and  the  will  of  the  bene- 
ficiary is  substituted  for  his,  undue  influence  exists.^^'^ 

The  distinction  in  actual  practice  between  the  cases  of  un- 
due influence  between  husband  and  wife,  or  parent  and  child, 
on  the  one  hand,  and  testator  and  a  beneficiary  on  the  other,  • 
is  that  the  courts,  and  still  more  the  juries,  recognize  that  solic- 
itation and  importunity  may  go  to  a  considerably  greater  ex- 
tent in  the  domestic  circle  than  between  persons  not  so  related, 
before  the  will  of  testator  is  actually  broken  dow^n. 

§411.     Wills  in  favor  of  those  living  in  improper  sexual  rela- 
tions with  testator. 

In  some  of  the  earlier  cases  it  was  held  that  the  mere  fact 
that  testator  made  a  will  in  favor  of  a  woman  who  was  liv- 
ing with  him  as  his  mistress  raised  a  presumption  of  fact  of  un- 
due influence,  and  that  such  state  of  facts  was  of  itself  enough 
to  justify  a  finding  of  undue  influence.^^^  The  great  weight 
of  modern  authority,  however,  holds  that  the  mere  fact  that  the 

335  Bulger  V.  Ross,  98  Ala.  267;  v.  Lide,  2  Brev.  (S.  Car.),  403. 
Armstrong  v.  Armstrong,  63  Wis.  337  Pierce  v.  Pierce,  38  Mich.  412; 
162.  Messnor  v.   Elliott,   184  Pa.   St.  41. 

336  Berwick  v.  Langford.  108  Cal.  338  Dean  v.  Negley,  41  Pa.  St. 
608;  Storey's  Will,  20  111.  App.  312:  see  Hess's  Will,  31  Am.  St. 
183:  (not  affected  on  this  point  Rep.  605  for  cases  that  will  to  a 
bv  the  reversal  in  120  111.  244)  ;  mistress  shows  per  se  undue  in- 
Tliompson  v.  Tsh,  00  Mo.  160:  Ma-  fluenee. 

son  V.  Williams,  53  Hun,  398 ;  Lide 


LAW     OF     WILLS. 


489 


,    -,  1  1      -f,.!    covnnl    relations   with   testator   is, 

beneficiary  holds  -^'^^'^J^  ^         .  „,  „,,,„,  influence, 
of  itself,  not  sufticent  to  justilj  a  nn       „  ^^^ 

„nd  tluU  upon  such  facts  no  presumption  aiises. 

Tl  a  y  cases  have  not  been  overruled  by  the  second  hne 
of  ca  e  btU  distinguished.  In  the  earlier  bne  there  was  in 
irtase  enough  ^ddenee  of  actual  undue  inflneuce  to  jus- 
ti-fv  thp  findinc;  of  the  coiirt.^"*^ 

L  11  the  existence  of  the  unlawful  relationship  does 
nof  lount  per  se  to  undue  influence,  it  is  in  many  cases  ol 
innnortance-^  Accordingly,  where  there  is  some  evi- 
^  3  Ho  show  actual  ^ndue  influence,  the  fact  th^ 
ttaL  or  testatrix  occupied  unlawful  ^sexual  relations  with 
each  other  is  admissible  in  evidence. 


339Wingrove  v.   Wingrove,  L.   R. 
11    P.    D.    81;    Moore     v.     Heineke, 
119  Ala.  627;   Dunlap  v.  Robinson, 
28   Ala.    100;     Richmond's     Appeal, 
59    Conn.    226;    Smith    v.    Henline, 
174  111.  184;  Kessinger  v.  Kessinger, 
37  Ind.  341 ;  Porsehett  v.  Porschott, 
82   Ky.   93;     Davis    v.     Calvert,    5 
Gill.   &  J.    (Md.)    209;    Wallace   v. 
Harris,  32  Mich.  380;   Hess's  Will, 
48  Minn.  504 ;   Sunderland  v.  Hood, 
84  Mo.  293;    Arnault    v.    Arnault, 
52    N.    J.    Eq.    801;     31    Atl.    606; 
Smith  V.  Smith,  48  N.  J.  Eq.  .506; 
:^Iondorfs    Will,    110    N.    Y.    450; 
Monroe   v.   Barclay,    17    O.   S.   302; 
Johnson's  Appeal,  159  Pa.  St.  630; 
Wainright  v.  Wainright,  89  Pa.  St. 
220;    Rudy   v.    Ulrich,    69    Pa.    St. 
177;    Main    v.    Ryder,    81    Pa.    St. 
217;    Farr    v.    Thompson,    1    Clevcs 
(S    Car.),    37;    O'Neall   v.   Farr,    1 
Rich.     (S.    Car.),    SO;    McClure    v. 
McClure,   80   Tenn.    173. 

3+0  Johnson's  Appeal,  159  Pa.  St. 
630,  distinguishing  Dean  v.  Neg- 
ley,  41  Pa.  St.  312. 

341  "The  existence  of  an  illicit  re- 
lationship between  a  deceased^  tes- 
tator and  his  mistress  will  not  give 
rise  to  a  presumption  of  undue  in- 
fluence as  a  matter  of  law,  but  un- 


due influence  is  more  readily  in- 
ferred in  case  of  a  will  made  in 
favor  of  a  mistress  than  in  the 
case  of  a  will  made  in  favor  of  a 
wife.  The  existence  of  the  rela- 
tion is  a  circumstance  to  be  con- 
sidered by  the  jury  along  with 
other  facts  in  the  case."  Smith  v. 
Henline,   174   111.   184. 

342  In  re  RufTino's  Estate,  116  Cal. 
304 ;  Kessinger  v.  Kessinger,  37  Ind. 
341 ;  Baldwin  v.  Robinson,  93  Mich. 
438;  ( facts  in  reported  case  are  very 
meager)  ;  Dean  v.  Negley,  41  Pa. 
St  312 ;  Reichenbach  v.  Ruddach, 
127  Pa.' St.  564;  Bryant  v.  Pierce, 
95  Wis.  331  ;  McClure  v.  McClure, 
86  Tenn.   173. 

"The  jury  have  a  right  to  con- 
sider the  fact  of  the  unlawful  re- 
lationship when  there  is  proof,  as 
there  is  in  the  case  at  bar,  tending 
to  show  constraint  and  inference, 
impaired  mental  capacity,  loss  of 
will  power,  and  sickness  or  disease 
at  the   time  of   the   making   of   the 

will."  ^.. 

Smith  V.  Henline,  1-4  HI. 
184,  citing  INIonroe  v.  Barclay,  17 
0.  S.  302:  Johnson's  Estate,  159  Pa. 
St.  630:  INTcClure  v.  McClure.  86 
Tenn.  173. 


490  LAW     OF    WILLS. 

§412.     Subsequent  marriage   of  parties  in  unlawful  sexual  re- 
lations. 

In  accordance  with  these  principles,  it  is  not  competent  to 
show  that  testator  and  his  wife  had  illicit  and  unlawful  sexual 
relations  prior  to  their  marriage,^-*^  unless  the  evidence  dis- 
closes that  there  was  actual  undue  influence.^^^ 

§413.     Attorney  and  client. 

The  fact  that  the  attorney  who  is  consulted  upon  the  execu- 
tion of  the  will  suggests  the  legal  phraseology  appropriate  to 
carry  the  wish  of  testator  into  effect,  or  even  dictates  and  re- 
vises the  will,  does  not  of  itself  raise  a  presumption  of  undue  in- 
fluence.^'*^ And  where  the  attorney  who  is  employed  to  draw 
the  will  is  made  the  executor  of  the  will  by  the  terms  thereof,  no 
presumption  of  undue  influence  arises  on  that  ground  alone.^'*^ 
Where  a  will  leaves  property  to  the  attorney  of  testator,  who 
had  nothing  to  do  with  the  execution  of  the  will,  no  presmnp- 
tion  is  said  to  arise.  This  point  is  touched  upon  in  dicta  far 
more  often  than  in  adjudications,  for  the  question  of  undue  in- 
fluence of  an  attorney  is  rarely  raised  except  where  the  attor- 
ney drew  the  will.  Where  the  attorney  draws  the  will  and  re- 
ceives a  beneficial  interest  thereunder,  the  case  is  one  of  those 
discussed  in  the  next  section,  where  the  beneficiary,  who  is  in 
confidential  relations  with  testator,  draws  the  will,  and  the 
rules  there  given  apply  ;^'*'^  but  where  the  attorney  who  draws 
the  will  suggests  such  a  change  in  the  phraseology  as  to  change 
an  interest  given  to  him  as  trustee  to  an  absolute  interest,  such 
conduct   avoids   the  will.^^^      \Yhere  the  attorney   drafts   the 

343  In  re  Flint's  Estate,   100  Cal.  3*6  Livingstone's  Appeal,  63  Conn 

391;   Tn  re  Langford,  108  Cal.  608;  68;    Richmond's    Appeal,    59    Conn 

Maynard   v.   Tyler,    168   Mass.    107.  226;   Dale's  Appeal,  57   Conn.   127 

34tMaynard   v.   Tyler,    168   Mass.  St.   Leger's   Appeal,   34   Conn.   434 

107;   Baldwin  v.  Robinson,  93  Mich.  Berberet  v.  Berberet,   131   Mo.   399; 

438;   Reichenbach   v.   Riiddach,    127  Edson's  Will,  70  Hun,  122. 

Pa.  St.  564.  317  Bennett  v.   Bennett,   50   N.   J. 

345  Hennessey's    Heirs   v.    Woulfe,  Eq.    439. 

49  La.  Ann.  1376;  King  v.  Holmes,  348  Jones   v.    Simpson,    171    Mass. 

84  Me.  219.  474;  Lyon  v,  Dada,   111  Mich.  340. 


LAW     OF     WILLS. 


491 


will  in  which  he  is  named  a  beneficiary  the  ordinary  rules  ap- 
ply which  control  a  will  drawn  by  a  beneficiary.^"*^ 


§414.     Effect  of  beneficiary's  drawing  will. 

At  Roman  Law,  if  a  person  wrote  a  will  in  his  own  favor 
such  will  was  void.^^^ 

At  our  law  the  rule  is  by  no  means  as  strict  as  at  Roman  law. 
The  rule  established  by  the  weight  of  authority  is  that  where 
the  will  is  drawn  by  beneficiary,  who  was  also  in  confidential 
relations  with  testator,  a  presumption  of  undue  influence 
arises.^^^     This  rule  is  not  limited  to  those  related  by  blood,  but 


34!)  See  Sec.  414. 

350.  Dig.  Lib.  48  Tit,  10  §15; 
Paske  V.  Ollat,  2  rhil.  Ecc.  Cas. 
323;  Barney's  Will,  70  Vt.  352; 
Bennett  v.  Bennett,  50  N.  J.  Eq. 
439. 

35iCoghill  V.  Kennedy,  119  Ala. 
641;  24  So.  459;  Garrett  v.  Hef- 
lin,  98  Ala.  615;  Henry  v.  Hall, 
106  Ala.  84;  Higginbotliam  v.  Hig- 
ginbotham,  106  Ala.  314;  Silvany's 
Estate,  127  Cal.  226,  59  Pac.  571; 
Drake's  Appeal,  45  Conn.  9 ;  Hughes 
V.  Meredith,  24  Ga.  325;  Adair  v, 
Adair,  30  Ga.  102;  Gerrish  v. 
Nason.  22  Me.  438;  Bush  v.  Del- 
ano, 113  Mich.  321;  Brown  v.  Bell, 
58  Mich.  58  ;  Farnum  v.  Boyd,  50  N. 
J.  Eq.  760;  Delafield  v.  Parish,  25 
N.  y.  9 ;  Yardley  v.  Cuthbertson, 
108  Pa.  St.  395;  Scattergood  v. 
Kirk,  192  Pa.  St.  195;  Cuthbert- 
son's  Appeal,  97  Pa.  St.  163;  Blunie 
V.  Hartman,  115  Pa.  St.  32;  Hoope's 
Estate,  174  Pa.  St.  373;  Tomkins 
V.  Tomkins,  1  Bail.  (S.  Car.), 
92;  Smith's  Exr's  v.  Smith,  67  Vt. 
443;  Barney's  Will,  70  Vt.  352; 
Montague  v.  Allan's  Exr's,  78  Va. 
592;  Armor's  Estate,  154  Pa.  St. 
517;  Wilson's  Appeal,  99  Pa.' St. 
545. 

"In   all    cases    the    burden    is    on 


the  proponent  to  establish  that  the 
instrument  is  the  will  of  the  tes- 
tator. Williams  v  Robinson,  42  Vt. 
658;  Roberts  v,  Welch,  46  Vt.  164. 
In  general  the  law  presumes  this 
vital  fact  from  the  proven  facts 
that  the  instrument  was  executed 
by  the  testator  with  the  formali- 
ties required  by  law,  and  that  he 
was  of  testamentary  capacity  so 
that  affirmative  proof  that  the  will 
was  not  procured  by  the  undue  in- 
fluence of  others  is  not  required. 
But  where  the  relations  between  the! 
testator  and  the  proponent  were 
confidential  and  the  proponent  drew 
the  will  taking  the  entire  estate  or 
a  large  bequest  and  would  have 
taken  nothing  as  heir,  while  near, 
needy  and  deserving  relations  take 
nothing,  then  the  law  not  only  re- 
gards the  transaction  with  suspi- 
cion, but  the  burden  should  he 
cast  upon  the  proponent  to 
show  that  he  did  not,  nor  did 
anyone  in  his  behalf,  unduly 
influence  the  testator,  and  that  the 
instrument  propounded  is  the  testa- 
tor's will  and  not  the  will  of  another 
person."  Barney's  Will,  70  Vt.  352, 
citing  Paske  v.  Ollat,  2  Phillim. 
Ecc.  R.  323:  Barry  v.  Butlin,  1 
Curt.  Ecc.  637;  2  Moore  P.  C.  480; 


492  LAW     OF     WILLS. 

applies  to  any  confidential  relations.^^-  A  similar  presumption 
arises  when  the  will  is  drawn  by  a  hnsband  of  the  beneficiary.^^ ^ 
But  where  the  will  was  drawn  by  an  attorney  who  held  a  share 
in  a  cemetery  association,  and  was  a  director  in  such  association, 
and  by  the  Avill  a  legacy  was  given  to  such  association,  no  pre- 
sumption of  undue  influence  arises.''^^ 

But  this  presumption  is  neither  a  conclusive  presumption, 
nor  even  a  presumption  of  law,  but  merely  a  presumption 
of  fact.  "There  is  a  'long  stride'  between  any  inference 
that  can  be  drawn  from  the  evidence  offered  at  the  trial 
.and  the  established  fact  of  undue  influence  upon  the  testa- 
tor."^^^  And,  as  has  been  said,  these  are  facts,  "in  no  case 
amounting  to  more  than  a  circimistance  of  suspicion."  ^^^  So, 
while  the  jury  may  find  undue  influence  as  a  fact  from  the 
fact  that  a  beneficiary  in  confidential  relations  with  testator 
drew  the  will,  the  court  must  not  charge  the  jury  as  a  matter  of 
law  so  to  find.^^^  Accordingly  the  circumstances  as  intro- 
duced in  evidence  may  rebut  the  presumption  of  fact  of  un- 
due influence  in  these  cases,  and  the  jury  may  find  that  no  un- 
due influence  existed    without  bringing  in  a  verdict  contrary  to 

Burling  v.  Loveland,   2   Curt.   225;  W.    1;     Tvler   v.    Gardinier,    35   N. 

Tyrrell  v.  Painton    (1894),  P.  151;  Y.  559;    Delafield  v.  Parish,  25  N. 

Higginbotham  v.  Higginbotliam,  106  Y.   9;     Greenwood  v.   Cline,   7   Ore. 

Ala.   314;    Moore  v.   Spier,   80  Ala.  17;    Swails   v.    White,    149    Pa.    St. 

129;    Lyons   v.    Campbell,    88    Ala.  261. 

462 ;  Bancroft  v.  Otis,  91  Ala.  279 ;  352  Soattergood   v.   Kirk,    192   Pa. 

Eastis  V.  Montgomery,  95  Ala.  48():  St.    263;    Darlington's    Estate,    147 

Richmond's   Appeal,   59   Conn.  226;  Pa.   St.   624. 

Hughes    V.    Meredith,    24    Ga.    325;  353  Bromley's    Estate,    113    Mich. 

Hess's  Will,  48  Minn.  504;   31  Am.  53. 

St.   Hep.   665 ;    Maddox  v.   Maddox,  35i  Earkley  v.   Cemetery   Associa- 

114   Mo.    35:    Carroll   v.   House,   48  tion    (Mo.)     (1899),   54   S.   W.   482. 

N.  J.  Eq.  269;   Dale  v.  Dale,  38  N.  353  King  v.   Holmes,  84  Me.  219: 

J.   Eq.   274;    Post  v.  Mason,  91   N.  Logan's  Estate,   195   Pa.   St.  282. 

Y.    539 ;    In    re    Smith,    95    N.    Y.  35g  Bennett  v.   Bennett,   50   N.   J. 

517;    Tyler   v.   Gardiner,    35   N.   Y.  Eq.  439. 

559;    on   the  same  point  are  Blew-  357  Stirling    v.    Stirling.    64    Md. 

itt  V.  Blewitt,  4  Hagg.  Ecc.  R.  463:  138:  Griffith  v.  Diffendeffer,  50  Md. 

Smith    V.    Henline,     174    HI.     184;  466. 

Wood     V.     Devers      (Ky.),     19     S. 


LA^7    OF    WILLS.  493 

the  law  and  the  evidence.^^*  X^i^^s,  where  the  evidence  shows 
an  absence  of  actual  undue  influence,  and,  further,  that  testa- 
trix kept  the  will  a  year  after  execution,  the  jury  may  find  that 
no  undue  influence  existed  though  the  residuary  legatee,  an 
old  friend,  drew  the  will;*"*^^  and  so,  where  an  attorney,  who 
was  also  a  legatee,  drew  the  will,  but  the  clause  giving  him 
the  legacy  was  inserted  by  testatrix  in  her  own  handwriting 
after  she  took  independent  legal  advice.^^*^ 

Where  the  will  was  drawn,  at  request  of  testatrix,  by  a  per- 
son who  had  no  confidential  relations  with  her,  and  who  was  the 
father  of  a  beneficiary  under  the  will,  it  was  held  that  no  pre- 
sumption of  undue  influence  arose  f^'^  and  where  the  attorney 
who  drew  the  will  was  a  beneficiary  thereunder,  and  was  also 
guardian  of  testator,  these  facts  did  not  constitute  undue  influ- 
ence where  such  attorney  had  always  been  regarded  by  testa- 
tor as  his  father.^*^^  And  the  facts  that  a  lei2;acv  was  s-iven  to 
the  attorney  who  drew  the  will,  and  who  was  also  named  as  ex- 
ecutor, and  was  trustee  of  three  corporations  to  which  bequests 
were  given,  were  held  not  to  constitute  undue  influence  where 
testatrix  retained  possession  of  the  will  thereafter,  and  no  di- 
rect evidence  of  fraud  or  undue  influence  appeared.^*^^  And 
where  the  evidence  discloses  that  the  proponent  was  active  in 
causing  the  will  to  be  executed  by  reason  entirely  of  his  desire 
to  aid  testatrix  and  carry  out  her  wishes,  no  presumption  of  un- 
due influence  arises.^^'*  So,  where  the  beneficiary,  who  was  a 
son  of  testatrix,  furnished  the  data  for  the  will  to  the  scrive- 
ner, whom  he  had  called  in  to  draw  the  will,  it  was  held  that 


35H  Henry   v.   Hall,    106   Ala.   84;  N.  Y.  539;  Logan's  Estate,  195  Pa. 

Lyons    v.    Campbell,    88    Ala.    462:  St.  282. 

Garrett    v.    Heflin,    98    Ala.    615;  ^59  Garrett  v.  Heflin,  98  Ala.  615. 

Daniel  v.  Hill,  52  Ala.  430;  White  seo  Bromley's    Estate,    113    Mici. 

V.   Cole,   —  Ky.— ;   47   S.   W.   759;  53. 

King  V.   Holmes,  84  Me.  219;   Stir-  sei  Henry   v.    Hall,    106    Ala.    84. 

ling  V.  Stirling,  64  Md.  138;  Brom-  362  White  v.  Cole  (Ky.),  47  S.  W. 

ley's    Estate,    113    Mich.    53;    Car-  759. 

p-^nter    v.    Hatch,    64    N.    H.    573:  363  Farnum  v.  Boyd,  56  N.  J.  Eq. 

Bennett   v.    Bennett,    50   N.   J.    E-p  766. 

439;    liuslino-  V.   Rusling,   36   N.  J.  364  Eastis  v.  Montgomery,  95  Ala. 

Eq.   603:   Waddinirton   v.   Buzby  45  486;  11  So.  204. 
N.  J.   Eq.    173;    Post   v.  Mason,   91 


494  LAW     OF     WILLS. 

such  conduct  did  not  establish  undue  influence  where  testatrix 
had  the  will  read  over  to  her  before  execution  in  the  absence  of 
the  beneficiarv.^*^^  But  in  some  extreme  cases  it  is  said  that 
only  the  clearest  evidence  can  rebut  the  presumption  of  undue 
influence.  Thus,  where  testator  was  advanced  in  years,  and 
of  very  doubtful  capacity,  and  the  attorney  who  prepared  the 
will  wrote  himself  as  executor  and  chief  beneficiary,  it  was  said 
that  in  order  to  rebut  the  presumption  of  undue  influence  he 
must  offer  evidence  of  the  clearest  and  most  convincing  char- 
acter; and  his  claim  that  this  legacy  was  in  compensation  for 
legal  services,  which  were  worth  far  less  than  the  legacy,  was 
not  suflicient  to  rebut  such  presumption.^*^" 

§415.     Effect  of  presence  of  legatees  at  execution. 

The  mere  fact  that  legatees  were  present  when  the  will  was 
made,  without  any  evidence  that  they  induced  or  procured  the 
execution  of  the  will,  does  not  raise  any  presumption  of  undue 
influence.^^''^  And  even  though  beneficiaries  were  present  at  the 
execution  of  the  will,  and  employed  the  attorney  who  drew  the 
will,  no  presumption  of  undue  influence  arises  where  the  evi- 
dence does  not  disclose  that  they  even  knew  the  provisions  of  the 
will.3«8 

§416.     Effect  of  business  relations  between  testator  and  bene- 
ficiaries. 

The  fact  that  the  devisee  under  a  will  had  been  for  a  long 
time  the  partner  of  the  testator  does  not  raise  a  presumption 
of  undue  influence ;  ^^^  nor  does  the  fact  that  devisee  was  the 

3fi3  Logan's    Estate,    195    Pa.    St.  Wilcoxon,     1G5    111.    454;     Dieffen- 

282.      Similar   facts  were   presented  bach   v.    Grece,    56   N.   J.   Eq.    365; 

in  Scattergood  v.  Kirk,  195  Pa.  St.  Delgado     v.     Gonzales,      (Tex.     Civ, 

195.  App.),  28  S.  W.  459. 

36GHoopes's   Estate,    174    Pa.    St.  sosMcMaster  v.  Scriven,  85  Wis. 

373_  162.     (See  cases  in  preceding  note.) 

367Henry   v.    Hall,    106    Ala.    84;  369  Goodbar  v.   Lidikay,    136  Ind. 

Ethridge  v.  Bennett's   Executors,   9  1. 
IToust.     (Del.),    295;     Wilcoxon    v. 


495 

LAW     OF    WILLS. 

business  manager  of  testator,""  or  his  confidential  agent,"'  or 

'Tn°a"cl  Kew  Jersey  case  where  the  partner  of  a  testator 
who  was  an  habitnal  drunkard  drew  the  will,  jn  wMch  he  was 
lamed  as  executor  though  not  a  beneficiary,  and  the  benefic.ary 

^tat^r's  son,  was  ordered  U,  continue  *!>«  P-"--'"P  J' ^^ 
ecutor  and  not  to  sell  bis  interest  wUbout  las  permission,  rt  was 
held  that  such  facts  do  not  constitute  undue  influence 

The  nature  and  extent  of  the  dealings  between  testator  and 
beneficiary  may  show  that  they  did  not  occupy  ordinary  busi- 
ness relations  Lard  each  other,  but  that  the  relations  were 
Th  L  of  especial  trust  and  confidence."*     Where  the  henefl- 
ciarv  occupies  relations  of  trust  and  confidence  with  testator  i 
is  slid  that  the  burden  is  cast  upon  beneficiary  to  prove  that 
there  was  no  undue  iiifluence."^     Thus,  where  ^^^^'f/  J^ 
quired  absolute  control  over  testatrix,  and  thus  obtained  a  will 
in  his  favor,  it  was  held  void  for  undue  influence. 

§417.     Effect  of  intimacy. 

The  fact  that  beneficiary  was  an  old  friend  of  testator's  does 
not  of  itself  raise  a  presumption  of  undue  influence."'    Indeed, 

,,       •         „     n„M,CT     91    lo.      V.  Butcher,  91  la.  425;  Bancroft  V. 
.,.Dcnmng    v.    Butcher,  ^^^^^  ^^  ^^^   ^^^^  ^  ^^  ^^^.  ^^^^^^ 

*'^^'  ,    t  n,»*  the  V    Whelnley,  111  N.  Y.  239;  Mon- 

"Nor  will  the  mere  fact  that  the  v   ""^'I!  «?• 

testator  gave  a  legacy  to  oue  ..ot  "or  s  « m    110  K  Y  450^ 
of  his  blood  and  who  had  been  his  «•>  Fatten    v.    cmey, 

confidential  , ''"f'-^,,;^  ";,^;^^^.  ''L  Douglass's  Estate,  162  Pa.  St. 

upon    such    legatee    the    bvuden    or  s 

showing  that  the  will  was  not  made  56/.                                     r..   xt    T    Fn 

snowiiie,  ^     ^                             „^a„+''  STsKoec^el  v.  Egner,  54  N.  J.  l^q- 

by   his    influence   or    procurement.  ivoe^ei           ^ 

Denning    v.    Butcher,    91    lo.    425,  623.                         o     ^^    mr  t^    9m 

ueniiLu^  374Manatt  v.   Scott,  106  lo.  20J. 

oitino'   Webber    v.    Sullivan,    58    io.  -^^^'^^                ^,.      „,    ai      o7o 

'".rr^-             M.r^r.-n     28    To  375  Bancroft  V.  Otis,  91  Ala.  2/9. 
260;    Mclntire    v.    McConn,    Z8    io. 

'          .^,           T      „=     70   Tn    p;iq-  376  Grove  V.   Spiker,    il  ma.   6W. 
480;    Smith   v.   James,    /2   io.   oi.J. 

Blake  V.  Rourke,  li  Io.  519.  377  Garrett     v^    Hefl  n^    98     Ala. 

"The    rule    as    to    the    burden    of  615;    Harp   v    Pan.    ^ '^ "^  4.39 

proof  in  cases  relating  to  gifts  in-  Goodbar    v.    ^^^^^^ay     136    Ind.       , 

L  viros.   where   a   confidential   re-  Lamb  v.  L^P;:;-';f'/^^/p^"^-/;   l 

lation    exists    between    the    parties,  Ressner  v.  Elliott^  184  Pa.  S.  41 , 

has    often    been    held    inapplicable  Green's  Appeal,  140  Pa.  St.   137. 
to  cases  touching  wills."     Denning 


496  LAW     OF     WILLS. 

it  is  said  rather  to  show  absence  of  imdiie  influence,  since  such 
a  will  would  be  just  and  natural.^^* 

§418.     Physician,  nurse,  etc. 

The  physician  and  nurse  of  testator  stand  in  a  relation  of 
peculiar  trust  and  confidence  to  the  testator,  especially  when 
the  will  is  made  in  his  last  sickness.  Accordingly,  devises  and 
bequests  in  favor  of  a  physician  or  nurse  have  been  held  by 
the  courts  to  be  subject  to  suspicion,  and  it  has  even  been  said 
that  a  presumption  of  fact  arises  of  undue  influence.^^^  But 
this  presumption  is,  of  course,  rebuttable  by  showing  that  tes- 
tator did  in  fact  make  his  will  in  favor  of  his  nurse  at  a 
time  when  he  was  entirely  free  from  influence.^^" 

Even  if  this  presumption  may  arise,  it  must  be  shown  that 
the  will  was  made  during  testator's  sickness,  while  under  med- 
ical care  of  the  persons  who  were  claimed  to  have  exercised 
such  undue  influence.^^^ 

Undue  influence  can  not  be  presumed  from  the  mere  fact 
that  the  physician  informed  testator  that  his  condition  was 
dangerous,  and  urged  him  to  arrange  his  business  affairs.' 


382 


§419.     Religious  adviser. 

The  fact  that  the  beneficiary  under  a  will  is  the  religious 
adviser  of  testator  is  said  to  raise  a  presumption  of  undue  in- 
fluence. This  presumption  is  like  otlier  presumptions  in  undue 
influence,  a  presumption  of  fact,  not  law.^^^ 

378"  Harp  V.  Parr,  IGS  111.  459.  affirmed  on  grounds  stated  in  opin- 

379  Pike's  Will,  83  Hun,  327;  ion  below  in  73  Mo.  242;  Marx  v. 
Chappell  V.  Trent,  90  Va.  849.  McGIvnn,  88  N.  Y.  357. 

380  Bush  V.  Lisle,  —  Ky.  — ;  12  In  the  cases  cited  in  the  notes 
S.   W.   7G2.  sustaining     this     proposition,     the 

381  Eidwell's  Succession,  52  La.  point  in  question  is  found  chiefly 
Ann.   744.  in    obitcrs.      Tn    Marx    v.    McClynn 

382  Folks  V.  Folks  (Ky.)  (1900),  the  whole  evidence  showed  no  un- 
54  S.  W.  837.  due  influence :  in  Zerega  v.  Perceval 

383  Zerega  v.  Percival,  46  La.  the  ground  of  attack  was  barred  by 
Ann.  590;  Hegney  v.  Head,  126  the  efllux  of  time,  and  further  the 
Mo.  619;  Muller  v.  St.  Louis  Hos-  religious  adviser  was  also  the  hus- 
pital  Association,  5  Mo.   App.   .390:  band  of  testatrix;    and  in  the  Mis- 


4Q7 

LAW    OF    ^yILLS. 

A  spiritual  adviser  is  ordinarily  in  a  relation  of  peculiar 
confidence  toward  his  congregation  or  parishioners.  Accord- 
ino-lj,  as  in  other  cases  of  those  in  confidential  relations,  un- 
due influence  may  be  inferred  as  a  presumption  of  fact  from 
the  additional  circumstances  that  such  adviser  drew  the  will 
or  procured  it  to  be  drawn.=^«^  And  suggestions  from  a  spirit- 
ual adviser  may  amount  to  undue  influence,  when  similar  sug- 
gestions from  a  stranger  would  not.^^^ 

^420.    Spiritualistic  adviser. 

The  doctrine  applying  to  priests  and  clergymen  is  applica- 
ble to  spiritualistic  advisers  and  mediums.  A  will  bequeath- 
ing property  to  a  spiritualistic  adviser  is  not  on  that  ground 
alone  presumed  to  be  caused  by  undue  influence.  And  a  rea- 
sonable will  has  been  held  valid,  even  where  testator  believed 
that  he  was  advised  to  make  it  by  spirits.=^«*^  But  evidence  ot 
fraud  and  deceit,  together  with  using  testator's  belief  in  spirit- 
ualism as  a  means  of  inducing  him  to  make  such  will,  is  undue 

influence.^^^ 

In  a  recent  Illinois  case  testatrix  was  induced  by  an  al- 
leged medium  to  believe  that  he  had  a  mission  from  the  dead 
to^  reform  the  world,  and  that  in  order  for  him  to  do  this  it 

souri    cases    there    were    complicat-  384  Lyons    v.    Campbell,    88    Ala. 

ing  facts.     The  legatees  were  spir-  462;    Drake's   Appeal,   45   Conn.   9; 

itual    advisers    or    else    institutions  Hegney    v.    Head,     126    Mo.     619; 

with    which    they    were    connected,  Miller  v.   St.  Louis  Hospital  Asso- 

dnd    these    spiritual    advisers    drew  elation,   5   Mo.   App.   390;    73   Mo. 

the   will.      These   cases   might   well  242. 

be  decided  on  the  theory  that  the  sss  Carroll  v.  Hause,  48  N.  J.  E. 

legatee   drew   the   will.     In  a   later  269. 

case     where    the    pastor    of    testa-  ssc  Storey's    Will,    20    111.    App. 

tor's  church  refused  to  draw  a  will  183,   also  in   120  111.  244.     In  this 

for  testator,  leaving  a  large  part  of  ease  the  advice  seems  to  have  been 

his  property  to  the  church,  but  was  the    very    general    and    safe'    advice 

present    when    it    was    executed,    it  to  provide  for  those  that  he  loved 

was    held    not    sufficient    to    justify  best. 

submitting    the    question   of    undue  387  Thompson   v.   Hawks,   14   Fed. 

influence    to    the    jury.      Tibbe     y.  902 ;  Greenwood  v.  Cline,  7  Ore.  17. 

Kamp.    r,h    S.    W.    440;    54    S.    W. 

879;    (Mo.)    (1900). 


498  LAW     OF     WILLS. 

was  Decessary  that  he  be  provided  with  funds  to  eiiable  him 
to  print  and  publish  a  book.  lie  thereby  induced  her  to  make 
a  will  in  his  favor.^®^  This  case,  wliile  a  very  interesting 
one,  is  so  affected  by  the  fraud  of  the  beneficiary,  and  the  in- 
sane delusion  of  testatrix,  as  not  to  be  a  precedent  on  undue 
influence  alone. 

§421.     General  rules  of  presumption. 

As  a  general  deduction  from  the  specific  instances  of  pre- 
sumptions, it  may  be  said  that  a  presumption  does  not  arise 
from  the  mere  fact  that  the  beneficiary  takes  under  the  will, 
even  if  his  share  is  much  greater  than  he  would  receive  had 
testator  died  intestate,^^^  nor  is  a  presumption  created  by  the 
facts  that  beneficiaries  had  an  opportunity  to  exert  undue  in- 
fluence, and  that  the  will  actually  made  discriminates  in  their 
favor.^^^ 

§422.     Former  intention  of  testator. 

A  testator  has  full  power  of  revoking  former  wills,  and,  by 
a  new  will,  disposing  of  his  property  in  a  manner  entirely  dif- 
ferent from  his  previous  intentions.  At  the  same  time  it  is 
proper  for  the  jury  to  consider  whether  the  will  offered  for 
probate,  and  alleged  to  be  caused  by  undue  influence,  is  con- 
sistent AAdth  the  previous  intentions  of  tlie  testator  or  not.^^^ 

38S  In  discussing  this  case  the  39o /„  re  Langford,  108  Cal.  608; 
court  said:  "It  is  not  every  in-  Maddox  v.  Maddox,  114  Mo.  35 ;  Ber- 
fluence  exercised  over  a  testator  by  beret  v.  Berberet,  131  Mo.  399;  Mc- 
the  beneficiary  under  a  will  which  Fadin  v.  Catron,  138  Mo.  197 ;  Turn- 
will  justify  a  decree  setting  it  aside ;  ure  v.  Turnure,  35  N.  J.  Eq.  437  ; 
but  when  the  relative  positions  of  McMaster  v.  Scriven,  85  Wis.  162. 
the  parties  are  considered,  she  being  ^qi  Higginbotham  v.  Higginboth- 
an  aged  and  feeble  woman,  labor-  am,  100  Ala.  314;  Bulger  v.  Ross, 
ing  under  the  influences  of  an  in-  98  Ala.  267;  Kaenders  v.  Monta- 
sane  delusion  brought  upon  her  gue,  180  111.  300;  Pen.  Trust  Co. 
through  his  machinations,  the  rule  v.  Barker,  116  Mich.  333;  74  N.  W. 
can  have  no  proper  application."  Or-  508 ;  Horn  v.  Pullman,  72  N.  Y. 
chardson  v.  Cofield,  171  111.  14.  269;  Varner  v.  Varner,  16  Ohio,  C. 

389  Denning    v.    Butcher,    91    lo.  C.  386;   Whitelaws  v.  Sims,  90  Va. 

425;   Blake  v.  Rourke,  74  lo.   519;  588. 
Maddox   v.   Maddox,   114   Mo.    35. 


4-QQ 

LAW     OF   'WILLS.  ^^^ 

The  fact  that  testator's  intentions,  as  expressed  in  the  will, 
had  existed  for  years  prior  to  any  claim  of  undue  influence, 
is  ordinarily  sufficient  to  show  that  there  was  no  undue  in- 
fluence ;2''^   and  where  testatrix  -  had  hrought  up  a  child  and 
always 'had  expressed  her   intention   of  providing  for  it  by 
will,'' and  then  married  again  and  left  her  property  by  will  to 
her  'second  husband,  it  was  competent  on  the  question  of  undue- 
influence  to  show  that  testatrix,  when  married  the  first  time, 
had  made  a  will  in  favor  of  her  first  husband.^^'      So  it  is 
proper  to  show  that  the  disposition  of  property  made  by  tes- 
tatrix was  in  accordance  with  the  understanding  which  had  ex- 
isted for  years  between  herself  and  her  husband,   as  to  the 
disposition  of  their  property  to  be  made  by  the  survivor  of 
them,  and  entries  in  a  bank  book  made  years  before  by  tes- 
tatrix   are  admissible  to  prove    and  corroborate  evidence  of 
such  understanding.^^^ 

§423.     Declarations  of  testator. 

The  declarations  of  testator  are  generally  objectionable  as 
being  mere  hearsay.  Where  these  declarations  are  narrations 
by  testator  of  past  events  they  are  not  competent  for  this  rea- 
son, even  where  the  events  narrated  constitute  the  acts  of  un- 
due influence.^''^ 

But  testator's  declarations  may  be  admissible  on  one  of  two 

grounds : 

First.  The  declarations  may  be  made  at  the  very  time  of 
the  execution  of  the  will,  so  that  in  order  to  understand  what 
was  done  at  the  execution  it  is  necessary  to  hear  evidence  of 

392  Pen.  Trust  Co.  v.  Barker,  110  163;  Bevplot  v.  Lestrade,  153  111. 
Mich.  333;   74  N.  W.  508.  625;  Griffith  v.  Diffenderffer,  50  Md. 

393  Bulger   V.   Ross,   98    Ala.   267.  566;  Shailer  v.  Bumstead,  99  Mass. 

394  Perry"  V.  Moore,  66  Vt.  519.  112;    McFadin   v.   Catron,    138   Mo 


395  Calkins  v.  Calkins,  112  Cal 
296;  Comstock  v.  Society,  8  Conn 
254;  Jones  v.  Grogan,  98  Ga.  552 
:Mallery  v.  Young,  94  Ga.  804 
Gwin  V.  Gwin,  Ida.  48  Pac.  295 
Stephenson    v.    Stephenson,    62    lo 


197;  120  Mo.  252;  Doherty  v.  Gil- 
more,  136  Mo.  414;  Middleditch  v. 
Williams,  45  N.  J.  Eq.  726 ;  Water- 
man V.  Whitney,  11  N.  Y.  157  ;  Hers- 
ter  V.  Herster,  122  Pa.  St.  239; 
Kirkpatrick  v.  Jenkins,  96  Tenn. 
85. 


500  LAW     OF     WILLS. 

what  the  testator  said.     In  such  case  these  declarations  are  ad- 
missible under  the  theory  of  res  qeslae. 

Second.  The  declarations  of  testator  may  be  admissible 
as  being  in  their  very  nature  the  best  evidence  by  which  that 
particular  fact  can  be  proved. 

On  this  principle  the  testator's  declarations,  as  to  how  he 
means  to  dispose  of  his  property,  are  admissible.^^® 

In  some  states  a  declaration  by  testator,  after  the  execution 
of  his  will,  that  he  had  disposed  of  or  meant  to  dispose  of  his 
property  in  a  given  manner  is  held  admissible  when  the  scheme 
of  disposition  stated  by  testator  coincides  with  his  will ;  but 
inadmissible  when  different.^^"^  This  ruling  is  on  the  theory 
that  declarations  for  the  will  tend  to  show  the  absence  of  undue 
influence,  as  testator  is  still  satisfied  with  it  when  under  no 
restraint,  while,  if  his  subsequent  declarations  are  antagonistic 
to  the  will,  it  may  be  a  willfully  false  statement  of  testator 
meant  to  mislead  the  heirs.  So  it  is  held  that  testator's  decla- 
rations to  the  effect  that  he  is  not  satisfied  with  the  will  as  made, 
and  intends  to  change  it,  are  not  admissible.^^^ 

Testator's  declarations  are  also  admissible  to  show  the  state 
and  condition  of  his  mind  and  feelings,^^^  and  the  motives 
which  actuate  him  in  his  disposition  of  his  property.^'^°     Thus, 

396  Harp  v.  Parr,  168  111.  459;  soo  Coghill  v.  Kennedy,  119  Ala. 
In  re  Goldthorp's  Estate,  94  lo.  641;  Canada's  Appeal,  47  Conn. 
336;  McHugh  v.  Fitzgerald,  103  450;  Ball  v.  Kane,  1  Penn.  (Del.) 
Mich.  21;  Xeel  v.  Potter,  40  Pa.  St.  90;  Goldtliorp's  Estate,  94  la.  336; 
483;  Kaufman  v.  Caughman,  49  S.  May  v.  Bradlee,  127  Mass.  414; 
Car.  159;  Patterson  v.  Lamb,  21  Bush  v.  Delano,  113  Mich.  321 ;  Sey- 
Tex.  Cir.  App.  512.  mour's   Estate,    111    Mich.   203:    60 

397  Kaufman's  Estate,  117  Cal.  X.  W.  494;  Bush  v.  Bush,  87  Mo. 
288;  Calkin's  Estate,  112  Cal.  296;  480;  Waterman  v.  Whitney,  11  N. 
Jones  V.  Grogan,  98  Ga.  552;  Mai-  Y.  157;  Robinson  v.  Hutchinson, 
lery  v.  Young,  94  Ga.  804 :  Muir  v.  26  Vt.  38 ;  Bryant  v.  Pierce.  95 
Miller,  72  lo.  585 ;  Goodbar  v.  Lidi-  Wis.  331 ;  Campbell  v.  Barrera, 
key,  136  Ind.  1.  Tex.  Cir.  App.  32  S.  W.  724. 

"398Calkins    v.    Calkins,    112    Cal.  4on  Manatt  v.  Scott,  106  lo.  203; 

296;    Manogue   v.   Herrell,    13   App.  Lane  v.  Moore,  151  Mass.  87;  King 

D.  C.  455;  Jones  v.  Grogan,  98  Ga.  v.  Holmes,  84  Me.  219;  Hess's  Wi^^. 

552;    Gwin    v.    Gwin,    —   Ida.    — ;  48    Minn.    504;    Gordon    v.    Biirris. 

48    Pae.   295;    Bevelot  v.   Lestrade,  141    Mo.    602;    Waterman   v.   Whit- 

153   111.   625;    Dickie  v.   Carter,   42  ney,  11  N.  Y.  157;  Hindman  v.  Van 

111.   376.  Dyke.  153  Pa.  St.  243. 


LAW     OF     WILLS.  ^^^ 

testator's  declaration  to  the  effect  that  he  had  already  given 
his  son  as  much  as  the  rest  would  get  serves  to  show  that  his 
leaving  such  son  only  ten  dollars  was  not  due  to  false  accusa- 
tion against  his  honesty  made  hy  his  sisters  to  testator,^^^  and 
testato^r's  declarations  are  admissible  to  rehut  evidence  that  he 
was  happv  and  contented  during  the  year  before  his  death.^^^ 
In  some  cases  the  declarations  of  testator  include  both  a 
statement  of  the  acts  of  others  and  of  his  own  feelings,  so 
closely  connected  that  it  is  impossible  to  separate  them.  In 
such  case  they  are  held  admissible  as  far  as  they  tend  to  show 
testator's  motives  and  feelings    and  the  like.'*"^ 

A  statement  that  "the  clique  made  me  get  mad  at  you, 
and  made  me  do  what  I  did  not  intend  to,"  was  achnitted.^^^^ 
So,  where  testator  said:  "I  don't  know  anything  about  it; 
the'y  got  around  me  and  confuddled  me.  It  is  to  be  done 
over  again," ^''^  or,  "I  have  not  made  my  will  as  I  wanted  to; 
I  know  I  did  wrong,  but  I  could  not  help  it."  ^°«  But  in  such 
cases  these  declarations  have  no  weight  as  evidence  of  the 
acts  of  undue  influence,  and  the  jury  should  be  so  in- 
structed.^^'^ 

The  declarations  of  testator  made  at  a  considerable  dis- 
tance in  time  from  the  execution  of  the  will,  both  before  and 
after,  are  admissible  in  evidence  as  long  as  there  is  room 
for  fair  inference  that  they  indicate  testator's  feelings,  mo^ 
tives,  and  the  like,  at  tlie  time  of  making  the  will.^*^^ 

4oiCahill's    Estate,     180    Pa.    St.  414;  Herster  v.  Herster,  122  Pa.  S<.. 

131  239;   Evan's  Will,  123  N.  Car.   113-, 

402  Barney's   Will,    71    Vt.    217.  31   S.   E.   267;    Kaufman  v.   Caugh- 

403  Hollingsworth's  Will,  58  lo.  man,  49  S.  Car.  159;  Peerv  v.  Pee- 
526;  Hess's  Will,  48  Minn.  504;  ry,  94  Tenn.  328,  citing  Beadles  v. 
Doherty  v.  Gilmore,  136  Mo.  414;  Alexander,  9  Bax.  (Tf-.m.)  604; 
Evan's  Will,  123  N.  Car.  113;  31  Linch  v.  Lincli,  1  Lea.  (Tenn.)  526; 
S.  E.  267;  Ray  v.  Ray,  98  N.  Car.  Maxwell  v.  Hill,  89  Tenn.  584. 
5(3,;                      '  40S  Moore  v.  Gnbbins,  54  111.  App. 

404  Doherty  v.  Gilmore,  136  Mo.  163;  Dye  v.  Young,  55  lo.  433;  Par^ 
414  sons  V.  Parsons,  6w  lo.  754;    Shee- 

4or,  Stephenson   v.    Stephenson,   62  han   v.    Kearney,   —   Miss.    — ;    21 

lo.  168.  '  So.    41;    Peery    v,    Peery,   94    Tenn. 

40fi  Dennis  v.  Weeks,  51  Ga.  24.  328  ;  Campbell  v^.  Barrera,  Tex.  Cir. 

407Dohertv   v.    Gilmore,    136   Mo.   '  App.;   32  S.  W.  724. 


502  LAW     OF     WILLS. 

While  the  declarations  of  testator  are,  in  the  cases  already 
given,  admissible,  it  must  be  remembered  that  "such  declara- 
tions have  no  weight  unless  introduced  in  connection  with  evi- 
dence tending  to  prove  undue  influence,  mental  incompetency 
or  fraud  at  the  time  of  the  testamentary  act.""*"^ 

Whenever  declarations  of  testator  are  put  in  evidence,  with- 
out objection,  the  adversary  party  may  introduce  evidence  of 
other  declarations  of  testator  to  rebut  those  put  in  evidence,^^" 
and  even  if  such  declarations  are  resisted  when  offered  in 
evidence,  they  may  be  opposed  by  contrary  declarations  of 
testator  made  before  the  execution  of  the  will.^^^  But  a 
letter  alleged  to  have  been  written  by  testator  must  first  be 
sho^\ii  to  be  such  before  it  can  be  used  in  evidence  as  a  written 
declaration.'*^^ 

Declarations  made  at  a  time  so  remote  from  the  date  of 
the  will  as  to  throw  no  light  upon  the  condition  of  testator 
at  the  time  of  the  execution  of  the  will  are  inadmissible.^^^ 

§424,     Declarations  of  beneficiaries. 

Declarations  made  by  beneficiaries  under  the  will  are,  as  a 
general  rule,  inadmissible. 

There  are  two  classes  of  exceptions  to  this  rule : 
Eirst.  When  the  declarations  of  a  beneficiary  ai'e  so  con- 
nected with  the  facts  of  the  execution  of  the  will  or  with 
other  facts  admissible  in  evidence,  as  to  be  part  of  the  res 
gestae,  or  when  such  declarations  are  designed  to  influence  the 
testator,  and  the  fact  of  making  them  is  itself  a  material 
fact,  such  declarations  are  admissible.^^^     When  the  declara- 

409  In  re  Langford,  108  Cal.  608;  ney  v.  Cudney,  68  N.  Y.  148;  Evan's 
citin(7  In  re  McDevitt,  95  Cal.  17;  Will,  123  N.  Car.  113;  31  S.  E. 
Waterman  v.  Whitney,  11  N.  Y.  267;  Tallman's  Estate,  148  Pa.  St. 
157.  (See  Hess's  Will,  31  Am.  St.  286;  Tawney  v.  Long,  76  Pa.  St. 
R.   665.)  106;  Hoshauer  v.  Hoshauer,  26  Pa. 

410  Perry  v.  Moore,  66  Vt.  519.  St.  404. 

411  Kaenders  v.  Montague,  180  111.  4i4  Higginbotham  v.  Higginboth- 
300.                                                                   am,    106   Ala.    314;    Smith   v.   Hen- 

412  Clements  v.  McGinn,  —  Cal.  line,  174  111.  184;  Wallis  v.  Lnhr- 
(1893);  33  Pac.  920.  ing,    1.34    Ind.    447;    34   N.    E.    231; 

413  Garland    v.     Smith,    127    Mo.  Potter's   Will,    161    N.   Y.   84;    Per- 
583.      To    the   same    point    are   Do-  ret  v.  Perret,  184  Pa.  St.  131. 
hertv  V.  Gilmore,  136  Mo.  414:  Cud- 


503 

LAW    OF   'WILLS. 


tions  of  legatee,  o«ered  in  evidenee,  are  claimed  t^tavej^en 

n,ade  bv  Um  in  a  conversation  w.tk  testator,  ^.t^  is  error  to 

exclude" wkat  testator  said  in  sueli  conversation 

Second      Declarations  of  a  beneficiary  may  be  admitted  on 

the  tbeorv  that  they  are  declarations  against  interest.  In  order 
0  b^^  admissible  on  this  ground,  such  declaraUons  nrust  have 

leen  n.ade  after  the  interest  arose  that  i,  ^f^r  t  e  — » 
of  the  will,'-"  except  where  the  declaration  is  in  the  natuie 
rf  a  threat  to  infltLce  testator's  action,  ^vhen,  of  course,  it 
is  made  before  the  will  is  executed. 

I  the  declarations  oiTered  are  admissible,  as  being  against 
in^rest,  the  further  question  is  presented  as  to  their  admis- 
sibility as  affecting  the  validity  of  the  will. 

If  Uie  declaration  offered  in  evidence  was  made  by  the  only 
beneficiary  under  the  will  it  is,  of  course,  admissible  as  the  in- 
teTst  of  declarant  is  the  only  interest  that  can  be  affected 

*'"fltlnent.  by  one  ioint  devisee  are  f-^^^  ^^^ 
denee  to  affect  the  interest  of  his  co-devisee  where  sncb  interest 

^^  Vhte  rieficiaries  under  a  will  have  several  interests,  the 
question  of  the  adn.issibnity  ^^^^J^:;  :!-,L 
visee  presents  some  difficulty.     Un  princ  p^  .ipvisoes 

may  be  used  against  himself,  but  not  against  other  devisees 
whose  interest  are  diverse  from  his. 

In  some  jurisdictions,  as  we  have  seen,  a  part  of  a  will  ma^ 
be  declared  void  on  the  ground  of  undue  influence,  leaving  Uie 
L  in  force.     In  such  inrisdictions  th.  declarations  of  a  de- 
visee may  be  admitted  as  affecting  his  interests  alone. 

^  ..     .     .vii    ifil   K    Y    84  (This  declaration  was  made  in  the 

415  Potters  \Mn,  161  N.  \ .  84^  ^  ^^^^^   ^^^^.^^^^   ^„d 

..e  Ames's  Will,  51Io.  _596 ;  Gar-       pre  enc  ^^   ^^^^^^^^   ^^   ^^^^ 

land  V.   Smith,   127   Mo.   o83.  was                   g            devisees,   before 

.iTHigginbotham    V.    Higginboth-  ''''\'' .f   ^^%^'J° , 

inrAlp    S14-  Kino-  V.  Holmes,  a  codicil  was  added. ) 

am,  106  Ala.  314,  lUn     v.  4i9  Thus    in    a    Georgia    case   the 

84  Me.  219 ;   Capper  v.  C^ppe  ,  1^2  T^^  ^^^^^  ^^^^  ^^^  ^^^^^^^^^^^ 

Mass.   262;    52   N    E.   98     Garland  ^.^^^   ^^    ^^^.^^^^ 

"    ^™''^;oP      ^t    fifs     Pevetv        against  himself,  but  not  against  the 
Estate,  ;j^%^-  St.   645,   Pei.et  ^.^^^  ^  ^^^^^  .^^^^  ^^^^^^       ,. 

^r  L^^h  ^■^^^:  174  111.  184.       .cient  proof  may  stri.e  out  h.s  leg- 


504 


LAW     OF     WILLS. 


In  jurisdictions  where  the  will  is  treated  as  a  unit,  as  far 
as  undue  influence  is  concerned,  the  declarations  of  a  devisee 
are  not  admissible  where  there  are  several  whose  interests  are 
separate.'*^" 

Declarations,  where  admissible  on  the  grounds  already 
stated,  must  be  considered  further  as  to  their  nature.  A 
declaration  of  a  fact  material  or  relevant  to  the  issue  is  ad- 
missible. So  is  a  declaration  in  the  nature  of  a  threat  to 
exercise  undue  influence  where  the  will  was  actually  made  of 
the   sort   threatened.'^-^      Thus,    where     the   chief   beneficiary 


acy  and  establish  the  balance  of 
the  will,  so  that  the  will  may  be 
good  as  to  one  party  and  not  good 
as  to  another."  Morris  v.  Stokes, 
21  Ga.  552.  This  statement  was  an 
obiter,  as  the  evidence  had  been  in- 
troduced so  as  to  affect  the  inter- 
ests of  all.     See  Sec.  131. 

420  Livingstone's  Appeal,  63  Conn. 
68 ;  Hayes  v.  Biirkram,  67  Ind. 
359;  McMillan  v.  McDill,  110  111. 
47 ;  Rogers  v.  Rogers,  2  B.  Mon. 
(Ky.)  324;  Phelps  v.  Hartwell,  1 
Mass.  71 ;  Shailer  v.  Bumstead,  09 
Mass.  112;  Thompson  v.  Thomp- 
son, 13  O.  S.  356;  Nussear  v.  Arn- 
old, 13  Serg.  &  R.  (Pa.)  323;  Clark 
V.  Morrison,  25  Pa.  St.  453 ;  Irwin 
V.  West,  81*  Pa.  St.  157;  Forney 
V.  Ferrell,  4  W.  Va.  729. 

"If  our  mode  of  procedure  in  the 
settlement  of  the  estates  of  deceased 
persons  had  permitted  the  appel- 
lant to  take  three  appeals,  one  as 
against  each  legatee,  and  try  each 
alone,  or  had  pei'mitted  each  leg- 
atee to  have  a  separate  trial  of  the 
issues  raised  by  the  appellant,  then 
upon  the  trial  of  (C's)  appeal  it 
would  have  been  quite  permissible 
to  the  appellant  to  prove  that,  al- 
though (C)  was  claiming  in  the 
Superior  Court  his  rights  under  the 
will  as  legatee,  he  yet  had  insisted 
before    the    probate    court    that    his 


mother,  was  without  capacity  to 
make  a  will.  In  such  case  his  con- 
tradictory declarations  would  have 
affected  the  only  person  whom  he 
representea  or  for  whom  he  was  au- 
thorized to  speak,  namely,  himself. 
But  inasmuch  as  the  law  has  com- 
pelled (A)  and  (F)  to  submit  their 
several  and  individual  rights  of 
jjroperty  in  this  estate  to  the  issue 
of  a  proceeding  which  also  deter- 
mines those  of  ( C ) ,  it  in  avoidance 
of  great  injustice,  has  suspended  in 
their  favor  the  operation  of  the  rule 
that  a  party  to  a  proceeding  may 
prove  the  admissions  of  his  adver- 
sary. Of  necessity  the  use  of  C's 
admission  against  him  would  be 
to  use  it  against  all  the  other  leg- 
atees." Dale's  Appeal,  57  Conn. 
127,  followed  in  Livingston's  Ap- 
peal, 63  Conn.  68,  and  distinguish- 
ing Saunder's  Appeal,  54  Conn.  108, 
as  a  case  in  which  the  declarations 
admitted  appeared  on  the  record  as 
an  impeachment  of  his  evidence  al- 
ready given  that  he  never  had  ex- 
ercised any  i  .fluence  over  testator. 

Apparently  contra,  Gordon  v.  Bur- 
ris,    141    Mo.    602. 

421  Higgmbotham  v.  Higginboth- 
am,  106  Ala.  314;  Smith  v.  Hen- 
line.  174  111.  184;  Miller's  Estate, 
179  Pa.  St.  645;  Perret  v.  Perret, 
184  Pa.  St.   131.  . 


-LAW    OF   'WILLS.  •^^^ 


under  the  will  had  said  before  its  execution:  "Mother's  got 
to  make  a  will  some  of  these  days.  She  is  not  going  to  live 
very  long-  and  T  am  going  t«  have  all  the  property  or  raise 
hell  "  such  declaration  was  admissible  in  evidence.^^ 

Such  a  threat  is  not  conclusive  evidence  of  undue  influence, 
and  where  the  facts  of  execution  show  that  the  testator's  act  was 
free  and  voluntarv,  the  will  must  be  held  to  be  valid.^- 

Whcre  the  threat  to  use  influence  may  have  referred  to 
influence  to  do  other  things  than  mahe  a  will,  it  is  not  admis- 
sible ^^^  And  declarations  of  intention  to  injure  contestant, 
which  threats  were  never  known  to  testatrix,  are  inadmissi- 
ble.^'^ 

Declarations  of  a  legatee,  which  merely  express  her  opin- 
ion, that  under  other  circumstances  testatrix  would  have  made 
a  dift'erent  will,  are  not  admissible,  or  where  admitted  have 
no  weight.^'*' 

§425      Miscellaneous  declarations. 

O  * 

It  has  been  held  that  the  declarations  of  testator,  which  are 
merely  a  narrative  of  past- conduct  of  others  and  past  con- 
versations between  testator  and  others,  are  inadmissible  as 
hearsay,  although  testator's  evidence  would  be  admissible  if  it 
were  not  impossible  to  obtain  it.* 

Declarations  made  by  those  not  legatees  may  be  admissible 
as  being  part  of  the  res  gestae.  Thus  the  declarations  of  a 
nurse  that  she  would  put  certain  relatives  of  testator  out  ol 
the  sickroom  are  admissible  as  tending  to  show  a  plan  to 
control   him   absolutely,   in  order  to   induce  him  to  make  a 

will.^-"^  - 

Otherwise  such  declarations  are  mere  hearsay,  and  not 
admissible.  Tlius,  a  letter  written  by  testator's  wife,  whom 
he  survived,  to  defendant,  reflecting  upon  the  character  of 
defendant,  and  possibly  on  that  of  plaintifl-,  is  inadmissible; 

.2.wallis    V.    Luhring,    134    Ind.  ^.oMcHugh    v.    Fitzgerald      103 

447;  34  N.  E.  231.                           .  Mich.    21;    Renaud   v.    Pageot,    102 

423Peery  v.  Peery,  94  Tenn.   328.  Mich.   5G8. 

42.  King  V.   Hohnes,   84   Me.   219.  .       *  Gordon  v.  Burns,  141  Mo    602. 

425  Garland    v.    Smith,    127    Mo.  427  CoghiU   v.   Kennedy.    119   Ala. 


583. 


G41  ;  24  So.  459. 


506  LAW     OF     WILLS. 

SO  is  a  letter  from  a  stranger  to  testator  concerning  the  habits 
of  his  son-in-law/^-^  And  statements  made  bv  one  not  a 
beneficiary  under  a  will,  as  to  the  intention  of  beneficiaries  to 
exclude  contestants  from  testator's  presence,  are  inadmissible 
since  they  are  hearsay.'*^^  The  declarations  of  a  subscribing 
witness,  since  deceased,  concerning  the  sanity  of  testator  is,  of 
course,  mere  hearsay  and  inadmissible.'*^'^ 

§426.     Nature  of  will  and  conduct  of  beneficiaries. 

While  an  unjust  will  does  not  of  itself  raise  a  presumption 
of  undue  influence,  the  nature  of  the  will  may  be  considered 
by  the  jury  upon  the  issue  of  undue-  influence  as  a  circum- 
stance.'*^^ Thus,  the  fact  that  a  wife  who  was  claimed  to  have 
procured  a  will  by  undue  influence  took  less  under  the  will 
than  she  would  have  had  by  law  had  testator  died  intestate, 
is  of  great  weight  in  disproving  undue  influence.*^^ 

The  will,  however,  can  not  show  on  its  face  whether  it  is  fair 
or  not.  First,  in  order  to  determine  the  question  of  its  justice 
or  injustice  it  is  necessary  to  know  the  relationship  by  con- 
sanguinity or  afiinity  between  beneficiaries,  heirs  and  tes- 
tator. Second,  it  is  not  a  rule  of  law  that  a  will  which  dis- 
inherits the  relatives  of  testator  in  favor  of  strangers  to  his 
blood    is  an  unnatural  or  unjust  will.^^^ 

The  question  whether  a  will  is  natural  and  fair  or  unnat- 
ural and  unjust,  is  a  question  of  fact  for  the  jury  upon  all 

428  Miller   v.   Miller,    187    Pa.   St.  Rutherford   v.  Morris,   77   111.   397; 

572;    41    Atl.   277.  Kaendors  v.  Montague,  180  111.  300; 

429Hurton  v.   Hurton,   113  Mich.  Hollenbeck    v.    Cook,    180    111.    G5 ; 

634.  White  v.  Cole,  —  Ky.  — ;  47  S.  W. 

430  Cronshaw  v.   Johnson,   120  N.  759 ;     Mitchell's    Estate,    43    Minn. 

Car.  270.  73. 

Contra,  that  it  may  be  put  in  evi-  432  Maynard   v.   Tyler,   168   Mass. 

dence  where  such  witness  has  since  107. 

died,  to   contradict  his   former   tes-  433  Denning    v.    Butcher,    91     lo. 

timony  at  probate.  Abraham  V.  Wil-  425;    Smith  v.  James,   72   lo.   515; 

kins,    17   Ark.   292.  Merriman's  Appeal,  108  Mich.  454; 

43iCrandairs    Appeal,    63    Conn.  Webber  v.  Sullivan,  58  lo.  260;  Mc- 

365;  McCommon  v.  McCommon,  151  Intire  v.  McConn.  28  lo.  480;  Smith 

111.   428;    31   N.   E.   491;    Pooler   v.  v.    James,    72    lo.    515;     Blake    v. 

Christman,    145   111.   405,   overruling  Rourke,  74  lo.  519. 


LAW     OF     WILLS. 


507 


the  evidence  in  the  case.^"'*  Accordingly  evidence  is  admis- 
sible to  show  the  actual  conduct  of  beneficiaries  and  heirs  re- 
spectively toward  testator,  and  of  his  actual  feelings  towards 
them.^^^  Thus,  the  fact  that  beneficiaries  had  advanced  money 
to  testator  to  aid  him  in  emergencies  is  admissible  ;'*^^  and  it 
is  admissible,  as  tending  to  show  undue  influence,  to  introduce 
in  evidence  the  fact  that  proponents  had  managed  the  prop- 
erty of  testatrix  for  years ;  and  further,  the  report  made  by. 
testatrix  as  executrix  of  her  husband's  estate,  which  report 
was  prepared  by  proponents,  is  admissible  in  evidence  to  show 
by  the  omission  of  some  of  said  husband's  property,  which 
was  in  custody  of  proponents,  that  testatrix  was  not  aware  of 
her  estate,  and  that  proponent  had  concealed  it  from  her.^^''^ 
But  where  such  evidence  is  introduced,  proponent  may  go 
further  and  explain  the  entire  transaction.  Thus,  where  the 
evidence  showed  that  jiroponent  had  managed  the  estate  of 
deceased  for  a  long  time,  and  in  his  dual  capacity  of  such 
agent  and  of  administrator  of  another  estate,  had  compro- 
mised a  note  due  deceased  at  twenty-five  cents  on  the  dollar, 
it  was  admissible  for  proponent  to  show  that  in  this  transaction 
he  had  acted  under  legal  advice.'*^* 

The  fact  that  two  of  the  sons  of  testatrix  tried  to  have  her 
declared  a  lunatic  and  placed  under  guardianship  is  important 
as  explaining  their  exclusion  under  the  will.'*^^ 

Where  the  facts  of  the  dealings  between  the  parties  relate 
to  a  time  so  remote  from  the  date  of  execution  of  the  will 
that  it  can  not  be  inferred  that  such  dealings  could  or  would 
affect  the  will,  such  facts  are  not  admissible.     Thus,  evidence 


434  Henry  v.  Hall,  106  Ala.  84;  21;  Merriman's  Appeal,  108  Mien. 
Burney  v.  Torrey,  100  Ala.  157;  454;  Stewart  v.  Jordan,  50  N.  J. 
Eastis  V.  Montgomery,  95  Ala.  48G.  Eq.    7r>3;    Hindman    v.    Van    Dyke, 

435  Higginbotham  v.  Higginboth-  153  Pa.  St.  243 ;  Barney's  Will,  70 
am,  106  Ala.  314;  Burney  V.  Torrey,  Vt.  352;  Slinger's  Will,  72  Wis. 
100  Ala.  157;  Kaufman's  Estate,  117  22;  Bryant  v.  Pierce,  95  Wis.  331. 
Cal.  288 ;  Manatt  v.  Scott,  106  lo.  43o  Chandler  v.  Jost,  96  Ala.  596. 
203;  Denning  v.  Butcher,  91  la.  437  Manatt  v.  Scott,  106  lo.  203. 
425;  King  v.  Holmes,  84  Me.  219;  438  ^^  re  Hine,  68  Conn.  551. 
McHugh    V.    Fitzgerald,    103    Mich.  439  Pensyl's  Will,  157  Pa.  St.  465. 


508  LAW     OF     WILLS. 

that  twenty-five  years  before  the  execution  of  the  will  con- 
testants had  worked  for  testator  as  farm  hands  is  inadmis- 
sible."*^'' So  evidence  of  a  contract  between  testator  and  pro- 
ponent— testator's  widow — entered  into  some  time  before  their 
marriage  was  contemplated,  by  the  terms  of  which  she  was 
to  receive  three  dollars  a  week,  her  mother  and  brother  were 
to  live  with  them,  and  she  was  to  receive  the  further  sum  of 
fifteen  hundred  dollars  if  she  served  him  till  his  death,  was 
inadmissible,  no  evidence  being  offered  to  show  any  connec- 
tion between  such  contract  and  the  will  of  testator  raade  after 
his  marriage,^"*^  and  the  fact  that  the  beneficiary  under  a 
will  drew  out  all  the  money  of  testator  on  deposit  in  the  bank, 
on  checks  given  him  by  testator,  does  not  show  undue  in- 
fluence.^^^ 

Evidence  concerning  the  conduct  and  character  of  the  bene- 
ficiaries is  inadmissible  where  it  does  not  tend  to  show  the 
fact  of  undue  influence  or  its  absence.  Thus,  evidence  that 
the  person  who  was  claimed  to  have  exerted  undue  influence 
was  stingy  and  miserly  does  not  so  tend  to  show  that  she 
influenced  testator  to  make  a  will  in  favor  of  her  son  as  to 
be  admissible.^''"  So,  evidence  that  the  chief  legatee  spec- 
ulated on  'change  is  inadmissible.^"*'* 

§427,     Facts  explanatory  of  the  nature  of  the  will. 

As  the  nature  of  the  will  may  be  considered  by  the  jury 
on  the  issue  of  undue  influence,  facts  and  circumstances  which 
tend  to  show  that  the  will  was  either  just  or  unjust  are  ad- 
missible. Evidence  is  admissible  to  explain  the  actual  re- 
lations existing  between  testator  and  the  legatees  under  the 
will,  and  the  relations  between  testator   and  the  natural  objects 

44oMaddox   v.    Maddox,    114   Mo.  4*43  Calkins    v.    Calkins,    112    Cal. 

35.  296:  44  Pac.  577. 

**i  Smith  V.   Smith,    168   III.   4S8.  4-44  Garland    v.     Smith,     127     Mo. 

442Doherty   v.   Gilmore,    136   Mo.  583. 
414. 


LAW    OF    ,WILLS. 


509 


of  his  bonnty.^^^  Tims,  it  is  proper  to  show  where  the  next 
of  kin  were  excluded  in  favor  of  strangers  to  the  blood,  that 
these  "strangers"  had  been  brought  up  from  extreme  youth  by 
testator  as  a  member  of  his  household.^'**^  Thus,  in  order  to 
show  the  reason  for  the  hostile  feeling  of  testator  toward  a 
grandchild  it  was  proper  to  show  that  testator  and  the  parents 
of  this  grandchild  had  engaged  in  litigation,^^^  and  similar 
facts  may  be  introduced  to  show  testator's  feeling  towards  a 
legatee.'^  ■^^ 

Where  contestant  claimed  that  he  had  been  falsely  accused 
of  bigamy  to  testator,  it  was  competent  to  show  that  such 
charge  was  true.^^^  But  where  testator  and  his  daughter  had 
quarreled  just  before  the  will  was  made,  it  was  held  imma- 
terial what  the  ground  of  the  quarrel  was,  it  not  appearing 
that  the  quarrel  was  incited  by  beneficiary.'*^*^ 

In  some  cases  it  is  held  proper  to  show  the  financial  stand- 
ing of  children  of  testator  on  other  natural  objects  of  testa- 
tor's bounty.'*^-^  In  other  cases  such  evidence  is  held  to  be 
immaterial  and  inadmissible,'*^^  and  the  fact  that  the  benefi- 
ciaries under  a  will  who  were  not  the  relatives  of  testatrix 
were  supported  by  her  in  her  lifetime  was  held  inadmissible 
as  tending  to  show  undue  influence.'*^^ 

In  order  to  show  that  the  will  was  either  just  or  unjust, 
it  is  proper  to  show  how  testator  obtained  the  property  of 


445  Clough    V.    Clough,     10    Colo.  4r,o  Kaufman's     Estate,     117     Cal. 

App.  433;   Henry  v.  Hall,   lOG  Ala.  288. 

84;   Staser  v.  Hogan,  120  Ind.  21G;  45i  Barbour  v.  Moore,  10  App.  D. 

Denning    v.    Butcher,    91    lo.    425;  C.    30;    Gurley    v.    Park,    135    Ind. 

Allison's  Estate.  104  lo.  130;  Marx  440:   Manatt  v.  Scott,   lOG  lo.  203. 

V.  McGlynn,  88   N.   Y.   357;    Miller  452  Kaufman's    Estate,     117     Cal. 

V.    Miller,    187    Pa.    St.    572:    Slin-  288. 

ger's   Will,   72  Wis.   22;    Bryant  v.  453  Messner  v.  Elliott,  184  Pa.  St. 

Pierce,  95  Wis.  331.  41;    Henry    v.    Hall,    106    Ala.    84, 

440  Henry  v.  Hall,   100  Ala.  84.  can   be   distinguished   from   Messner 

447  Estes  V.  Bridgeforth,  114  Ala.  v.  Elliott  as  a  case  in  which  testa- 
221.  tor  not  only  supported  the  benefic- 

448  Canada's     Appeal,     47     Conn.  iary,  but  occupied  a  quasi-parental 
450.                                                        ,  relatio?!  to  him. 

449  Torrey    v.    Burney,    100    Ala. 
157. 


510  LAW     OF     WILLS. 

which  he  is  making  disposition  Ly  will.'*^'*  Thus,  it  is  proper 
to  show  that  testator  obtained  his  property  from  his  wife  and 
her  sister  by  deed,  and  that  at  the  tiine  they  deeded  it  to  him 
they  expressed  a  desire  that  he  shoiild  leave  it  to  the  persons 
to  whom  he  actually  did  devise  it.^^^ 

But  evidence  of  this  nature  is,  of  course,  not  conclusive,  as 
the  mere  fact  that  the  will  is  unjust  is  not  of  itself  evidence 
of  undue  influence."*^^ 

§428.     Condition  of  testator. 

As  the  question  on  the  issue  of  undue  influence  is  not 
whether  the  influence  exerted  would  have  overpowered  the 
will  of  the  average  man,  but  whether  it'  did  actually  overpower 
the  will  of  the  testator,  evidence  of  testator's  age,  health  and 
physical  condition  is  admissible,'*^^  and  so  is  evidence  of  his 
strength  of  mind  and  memory, '^^^  and  of  the  fact  that  testator 
has  been  under  gniardianship,^^^  and  of  testator's  extreme 
cruelty,  disgusting  eccentricities  and  the  like.'*^*' 

It  is  admissible  to  show  that  testator  was  intoxicated  when 
he  made  his  will,  even  if  the  intoxication  was  not  such  as  to 
incapacitate  him,  as  it  would  affect  his  susceptibility  to  the 
influence  of  others.^^-^ 

Evidence  that  testator  ceased  taking  care  of  his  property 
as  he  had  been  doing  is  admissible  as  tending  to  show  greater 
susceptibility  to  the  undue  influence  of  others,^ ''^  and  it  may 

454Gunii's  Appeal,  63  Conn.  254;  45s  Messner  v.  Elliott,  184  Pa.  St. 

Ruffino's  Estate,  116  Cal.  304;  Glo-  41;    Tallman's   Estate,    148    Pa.    St. 

ver    V.    Hayden,    4    Cush.     (Mass.)  286;    Patten    v.    Cilley,    67    N.    H. 

580;  Belknap  v.  Robinson,  67  N.  H.  520;     Foster    v.    Dickinson,    64    Vt. 

194;   29  Atl.  450.  233. 

455  Qunn's  Appeal,   63   Conn.  254.  459  Lamb  v.  Lippincott,  115  Mich. 

456  Ruffino's  Estate,  116  Cal.  304.  611. 

457  0Imstead  v.  Webb,  5  App.  D.  46o  Eivard  v.  Rivard,  108  Mich. 
C.  38;  Pooler  v.  Christman,  145  98;  Bittner  v.  Bittner,  65  Pa.  St. 
111.  405,  affirming  45  111.  App.  334;  347. 

Sullivan    v.    Foley,    112     Mich.     1;  4gi  Smith's   Executory.  Smith,  67 

Hess's  Will,  48  Minn.  504;   Gordon      Vt.  443. 

V.   Burris,   141   Mo.   602;    Periet  v.  462  Bryant  v.  Pierce,  95  Wis.  331. 

Perret,    184    Pa.    St.    131;    Peery    v. 

Peery,    94    Tenn.    328;    McClure    v 

Mcciure,  86  Tenn.  173. 


511 

LAW    OF    WILLS. 


be  sho^™  that  after  the  execution  of  the  wlU   testator  wa.  ig- 
norant  of  its  contents.*'^^  .  . 

On  the  other  hand,  evidence  that  testator  acquiesced  m  hi. 
.ill  after  its  execution,  when  free  from  undue  influence  and 
capabt  of  revoking,  is  admissil.lo,  not  as  shownig  a  rat.fica- 

ion  for  this  could  be  done  only  by  repubhcaUon,  but  as 
showing  that  the  will  was  made  without  undue  influence  m 

he  fir^^t  instance."*  Of  course  if  the  will  were  executed 
under  undue  influence  the  act  of  retaining  in  testator  s  pos- 
Lsion  would  not  give  it  validity.     Kepubhcation  would  be 

"There' the  fact  that  testator  did  not  destroy  his  will  after 
the  alleged  undue  influence  ceased  is  used  to  disprove  undue 
influenci  it  is  competent  to  show  that  testator,  by  reason  of  his 
physical  condition,  defective  memory,  and  the  like,  was  un- 
able to  revoke  it."»  As  tending  to  show  that  the  will  was 
not  in  the  custody  of  testator,  and  that  he  could  not  revoke  it 
evidence  that  the  envelope  in  which  it  was  placed  was  endorsed 
Jn  the  handwriting  of  a  beneficiary,  who  was  also  the  husband 
of  the  principal  legatee,  is  admissible.*" 

S429.     Circumstances  of  execution. 

As  the  circumstances  attending  the  execution  of  a  will  are 
especially  valuable  in  determining  whether  undue  influence 

..,  "There  was  evidence  tending  to       14 ;    Peery  v.   P-'^'.  »^  l"™^'  ^f^ 

Show    that    afte.    it,    e.ee,,t.o„    ,,e  -"="^  ^^^v.^S' H    A,:.'  Sec'. 

was  not  aware  of  its  contents,     ihis  o^o, 

was  competent."    Barney's  Will,  70  648. 

vt  352,  citing  Shalerv.Bumstead,  ^^-^i  Chaddick    v.    Haley,    81    Tex. 

99  Mass.  112^  ^^L  Barbour  v.  Moore,  10  App.  D. 

464  T-ii    rp    Coleman  s    rjState,    loj  -^                                   .            i.„j,, 

P     Vt    4S7.   Deck  V    Deck    (Wis.)  C.   30    (where  will   was   m   custody 

ItoO^OK  :fN.r.03^  TO  the  .a,ne  .  hn^  ot  ^^^ ^^ 

effect  are  Garrett  v.  Heflm.  98  Ala.  v.  na>aen, 

el5;  Ta„n,an.  Estate^  US  Pa.  St.  -i^o,  4^M.eh.  313.       ^^  ^^^    ^ 
286;  Hoshaucr  v.  Hoshauer,  Zb  i  a. 

St.  404 ;   Kaul  v.  Brown,  17   R.  I.  C.    30. 


512  LAW     OF     WILLS. 

existed  then  or  not,  such  circumstances  are  admissible  in  evi- 
dence.'* ^^ 

The  fact  that  at  the  time  of  the  execution  of  the  will  tes- 
tator was  under  the  actual  physical  control  of  beneficiaries, 
and  that  the  natural  objects  of  testator's  bounty  were  excluded 
from  testator's  presence,  is  admissible  and  usually  of  great 
weight.**^^  Eyidence  of  such  conduct  is  said  bj  some  courts 
to  raise  a  presumption  of  undue  influenee.'*'^^ 

Such  evidence  may,  of  course,  be  contradicted  or  explained 
away  by  proponent.  Thus,  where  contestants  introduced  evi- 
dence to  show  that  contestant,  who  was  testator's  father,  was 
not  sent  for  during  testator's  sickness,  when  the  will  was 
made,  because  proponent,  testator's  ^vife,  did  not  want  him 
there,  it  was  held  competent  for  the  wife  to  show  that  she 
invited  him  to  be  present  and  that  he  refused  to  come,  as  he 
was  too  old,  and  so  asked  another  person  to  go  in  his  place.^'^^ 

The  subscribing  witness  may  testify  that  at  the  execution 
of  the  will,  he  saw  no  signi  of  undue  influence.'*'^ 

However,  the  mere  fact  that  the  will  was  executed  secretly 
does  not  create  a  presumption  of  undue  influence.^ '^^.  But 
while  direct  evidence,  as  to  the  facts  and  circumstances  of 
execution,  the  exclusion  of  friends  and  relatives  from  testator, 
and  the  like,  is  admissible,  hearsay  evidence  of  such  facts  is, 
of  course,  incompetent.^'''^ 

46s'wilcoxon  V.  Wilcoxon,  165  111.  Atl.    2.55:    Boisaubin   v.    Boisaubin, 

454;   King  v.  Holmes,  84  Me.  219;  51   N.  J.   Eq.  252. 

In   re  Bromley's   Estate,   113  Mich.  47o  Chappell  v.  Trent,  90  Va.  849. 

5.3;  71X.W.  323;  Sullivan  v.  Foley,  47i  Allison's   Estate,    104   lo.    1.30. 

112  Mich.  1 ;  Bennett  V.  Bennett,  50  472  Taylor    v.     Pegram,     151     111. 

X.  J.  Eq.  439.  106;  37  N.  E.  837. 

469Coghill  V.   Kennedy,   119   Ala.  473  Tibbe  v.  Kamp   (Mo.)    (1900). 

641;    24    So.    459;    Frye   v.    Jones,  55  S.  W.  440;    .54   S.  W.  879;   Fox 

Ky.  — ;    24    S.    W.    5;    Green's  v.    Martin,    104    Wis.    581;    80    IST. 

Will,   67   Hun,   527;    Seymour's   Es-  W.  921:  Logan's  Estate,  195  Pa.  St. 

tate.  111  Mich.  203;  69  N.  W.  494:  282. 

Claffey    v.    Ledwith.    56    X.    .J.    Eq.  474  Hurton  v.   Hurton.    113   Mich. 

333;  Chappell  v.  Trent.  90  Va.  849:  634;    71    X.    W.    1078. 

Smith    V.    Smith,    07    Vt.    443;    32 


LAW     OF     WILLS.  513 

§430.     Opinion  evidence. 

If  the  witness  first  details  the  facts  upon  which  he  bases 
his  opinion  he  may  be  asked  his  opinion  whether  the  testator 
was  under  restraint  when  he  made  his  wilL'*'^^  A  beneficiary, 
however,  can  net  be  asked  his  opinion  as  to  the  injustice  of 
the  will,  for  this  is  peculiarly  a  question  for  the  jury.'*'^*^ 

Evidence  that  "something  in  the  manner  or  conduct"  of 
third  persons  made  witness  believe  that  testator  was  under 
their  control  was  inadmissible  where  the  evidence  did  not 
show  that  testator  was  present,  nor  what  this  "manner  or  con- 
duct" was,^'^^  and  evidence  that  the  person  who  was  claimed  to 
exert  undue  influence  "always  looked  shy,  and  was  generally 
confused,"  and  looked  as  if  he  wanted  to  do  something  that 
he  was  ashamed  to  do,  was  inadmissible  where  not  part  of  the 
res  gestae.'^'^^ 

V— EVIDENCE  OF  ALTERATION  AND  PARTIAL 
SPOLIATION. 


§431.     Burden  of  proof. 

Where  a  will  is  offered  for  probate,  with  alterations  ap- 
parent upon  its  face,  it  is  often  said  that  the  burden  of  proof 
is  upon  the  parties  offering  it  for  probate,  to  show  that  the  al- 
terations were  made  before  execution.'*  ^'^  This  proposition 
means  first,  that  in  every  will  the  burden  of  proof  is  upon 
proponents  to  establish  the  execution  in  the  form  in  which  it 
is  offered  for  probate  ;'*^°  and  second,  that  in  cases  of  certain 
alterations  the  presumption  arises  that  they  were  made  after 
execution. 

475  Jones  V.  Grogan,  98  Ga.  552 ;  479  Cooper  v.  Bockett,  4  Moore.  P. 
McLean  v.  Clark,  47  Ga.  24;  How-  C.  C.  419;  10  Jur.  931;  Lushington 
ell  V.  Howell,  59  Ga.  145;  Rollwag-  v.  Onslow,  6  Not.  Cas.  183;  Doe  v. 
en  V.  Rollwagen,  63  N.  Y.  504.  Palmer,  15  Jur.  836;  In  re  Lawson, 

476  Aylward  v.  Briggs,  145  Mo.  25  Nova  Scotia,  454 ;  Camp  v.  Shaw, 
604;   47   S.  W.  510.  52  111.  App.  241,  also  163  HI.  144; 

477  Jones  V.   Grogan,   98   Ga.   552.  In  re  Wilson,  8  Wis.  171. 

478 /n  re  Merriman's  Appeal,  108  48o  Holman  v.  Riddle,  8  0.  S.  384. 

Mich.  454 ;  66  N.  W.  372. 


51-4  LAW     OF     \\lLLi>. 

§432.     Presumptions. 

An  alteration  in  a  will  is,  as  a  general  rule,  presumed,  in  the 
absence  of  evidence,  to  have  been  made  by  the  testator  after 
the  execution  of  the  will."^^  This  rule  is  different  from  that 
often  said  to  obtain  in  the  case  of  other  written  instruments 
for  this  reason :  In  the  case  of  other  instruments  it  is  a  civil 
wrong,  if  not  a  crime,  to  alter  a  written  instrument.  In  case 
of  wills  the  testator  may  alter  the  will  as  much  as  he  pleases, 
without  wronging  anyone.  "There  is  no  crime  in  a  testator 
choosing  to  make  alterations  in  his  will,  but  he  can  not  re- 
serve to  himself  a  power  of  making  future  testamentary 
gifts  by  unattested  instruments."*^^ 

This  presumption  obtains  where  the  will  is  in  the  custody 
of  testator  and  subject  to  his  control.-*^^  But  where  the  evi- 
dence shows  that  the  will  was  in  the  custody  of  those  who 
were  interested  in  suppressing  it,  alterations  apparent  on  the 
will  are  not  ordinarily  presumed  to  have  been  made  by  tes- 

tator.^^^ 

At  least  one  important  qualification  must  be  made  to  this 
general  rule  of  presumption.  If  the  words,  claimed  to  be  an 
alteration,  are  necessary  to  the  sense  of  the  will,  the  law  will 
presume  that  they  were  accidentally  omitted  in  drafting  the 
will,  and  were  inserted  before  execution. ^^^ 

The  New  York  courts  seem  to  entertain  a  co-ntrary  view, 
and  to  hold  that  an  interlineation  in  the  handwriting  of  tes- 
tator, reasonable  and  fair,  and  without  anything  suspicious 
about  it,  except  that  it  is  an  interlineation,  is  not  presumed  to 
have  been  made  after  execution.  "Where  an  interlineation 
on  a  will  is  fair  upon  its  face,  and  it  is  entirely  unexplained, 

481  Cooper  V.  Bockett,  4  Moore,  P.  *83  See  cases  cited  in  last  two 
C.   C.   419;    Goods   of   Sykes,   L.   R.       notes. 

3    P.     26;     Burgoyne    v.     Shawler,  *84  Miles's  Appeal,  68  Conn.  237: 

1  Rob.  5;   hi  re  Lawson,  25  N.   S.  Bennett    v.    Sherrod,    3    Ired.     (N. 

454;    Camp   v.    Shaw,   52    111.   App.  Car.)   303. 

241 ;    Toebbe    v.    Williams,    80    Ky.  485  Goods  of  Cadge,  L.  R.  1  P.  & 

661;  Baptist  Church  v.  Robbarts,  2  D.   543;   Goods  of  Bist,  L.  R.  2  P. 

Pa.  St.  110.  214;    Goods  of  Adams,   L.   R.   2  P. 

482  Williams  v.  Ashton,  1  Johns  367 ;  Martin  v.  King,  72  Ala.  354. 
&  H.  115. 


LAW     OF    WILLS. 


515 


there  being  no  circumstances  whatever  to  cast  suspicion  upon 
it,  it  would  not  be  proper  for  any  court  to  hold  that  the  al- 
teration was  made  after  execution."  ^^^ 

§433.     Evidence  contradicting  or  supporting  presumption. 

These  presumptions,  in  cases  where  they  obtain,  are  prima 
facie  only,  and  may  be  rebutted.  A  certificate  in  the  attesta- 
tion clause  that  the  alterations  were  made  before  execution 
is  admissible  to  prove  such  fact,  and,  if  genuine,  is  conclu- 
sive.*" 

Extrinsic  evidence  from  those  who  saw  the  will  at  the 
time  of  execution  is  admissible  to  show  whether  the  altera- 
tions were  made  before  execution  or  not.*®^ 

According  to  the  English  authorities  declarations  of  testator 
before  or  at  the  time  of  the  execution  of  the  will  are  admis- 
sible to  show  whether  the  alterations  then  existed;  *^^  but  his 
declarations  after  the  execution  of  his  will  as  to  the  time  when 
the  alterations  Avere  made  is  inadmissible.*'^^ 

Expert  evidence  based  on  the  appearance  of  the  will,  the 
color  of  the  ink,  the  handwriting,  and  the  like,  is  admissible 
to  show  whether  the  alteration  was  made  before  or  after  ex- 
ecution. 

VI— EVIDENCE  OF  LOST  AND  SPOLIATED  WILLS. 


§434.     Degree  of  proof  necessary. — Burden  of  proof. 

The  statutes  upon  the  subject  of  lost  wills  are  generally 
framed  upon  the  theory  that  within  limits  of  safety  the  spolia- 
tor of  a  will  should  be  prevented  from  gaining  anything  by 

486  Grossman  v.  Grossman,  95  N.  489  Doe  v.  Palmer,  16  Q.  B.  747;; 
Y.  145.  Goods  of  Sykes,  L.  R.  3  P.  20. 

487  Lurie    v.    Radnitzer,     166    III.  49o  Goods  of  Adamson,  L.  R.  3  P. 
609 ;   Grossman  v.  Grossman,  95  N.  253. 

Y.  145.  Contra,  Ravenscroft  v.  Hunter,  2, 

488  Goods    of    Hindmarch,    L.    R.       Hagg,  65. 
1  P.  307 ;  Wright  v.  Wright,  5  InJ. 

389. 


516  LAW     OF    WILLS. 


liis   wrongful    act,    and   these   statutes    are   construed   by   the 
courts  as  being  in  odium  spoliatoris^^^ 

It  is  not  necessary  to  prove  the  contents  of  the  lost  will 
literally,  but  a  substantial  proof  of  such  contents  is  all  that 
is  reqnired,^^^  and  if  only  a  part  of  the  lost  will  can  be  proved 
such  part  may  be  admitted  to  probate.^^^ 

It  is  clearly  settled  that  the  burden  of  proof  in  probate  of 
lost  wills  is  upon  the  parties  offering  such  lost  mil  for  pro- 
bate.'*^'* To  what  degree  this  burden  of  proof  extends  is 
not  so  well  settled.  The  courts  exact  a  greater  amount  of 
evidence  than  a  preponderance.  In  some  cases  it  is  said  that 
the  evidence  must  be  "clear"  ;^^^  in  others  it  is  said  that  the 
evidence  must  be  "full  and  satisfactory"  ;^^^  in  still  other 
cases  it  is  put  in  the  superlative  degree,  and  it  is  said  that  the 
proof  must  be  "very  clear" ;  or  the  "clearest,  most  conclusive 
and  satisfactory."  ''*^^  In  other  cases  it  is  said  that  the  proof 
must  be  "beyond  all  reasonable  doubt."  ^^^  This  degree  has 
been  held  too  high  in  Alabama.^^^  In  other  cases  it  is  said 
that  it  should  be  "free  from  all  doubt."  ^^^  But  while  exacts 
ing.a  high  degree  of  proof  the  courts  hold  that  upon  the  facts 
of  the  destruction,  circumstantial  evidence  alone  may  be  suffi- 
cient to  justify  a  finding  for  the  will.^^^ 

491  Anderson  v.  Irwin,  101  111.  41  Vt.  59;  McNeely  v.  Pearson 
411;  Pomery  v.  Benton,  77  Mo.  64;  (Tenn.  Ch.  App.),  42  S.  W.  165, 
Lambie's  Estate,  97  Mich.  49;  Ban-       "clear    and    satisfactory." 

ning    V.    Banning,    12    O.    S.    437;  49- Kitchens   v.   Kitchens,   39   Ga. 

Brown  v.  Brown,  10  Yerg.    (Tenn.)  168;   Vining  v.  Hall,  40  Miss.  83; 

g4,  Buchanan     v.     Matlock,     8    Hump. 

492  Jones  V.  easier,  139  Ind.  382;  (Tenn.)    390. 

Banning  v.  Banning,   12   O.   S.  437.  49s  Woodward    v.     Goulstone,     11 

493  Jones  V.  easier,  139  Ind.  382;       App.  Cas.  469. 

eahill  V.  Owens,  2  Gaz.   (Ohio),  89.  499  Skeggs  v.  Horton,  82  Ala.  352; 

494Xewell    V.    Homer,    120    Mass.  Apperson     v.     eottrell,     3     Porter 

277;    Graham   v.    O'Fallon,     3    Mo.  (Ala.),  51. 

507  ;    Coddington   v.   Jenner,   57    N.  soo  Johnson's  Will,  40  Conn.  587 ; 

J.  Eq.  528;  41  Atl.  874;  affirmed,  45  Davis  v.  Sigourney,  8  Met.  (Mass.), 

Atl.  1090.  487. 

495  eoddington  v.  Jenner,  57  N.  J.  soi  Schultz  v.  Sehultz,  35  N.  Y. 
Eq.  .528;  41  Atl.  874;  affirmed,  45  653;  Harris  v,  Harris,  10  Wash. 
Atl.  1090.  555. 

496  Morris    v.    Swaney,    7    Heisk 
(Tenn.),    591;    Dudley   v.    Wardner, 


LAW    OF    WILLS.  "-^' 

§435.     Witnesses. 

In  some  jurisdictions  it  is  required  that  tlie  contents  of  a 
lost  will  must  be  proved  by  the  testimony  of  two  credible  wit- 
nesses, as  a  condition  precedent  to  its  admission  to  probate.^*^ 
Where  such  a  rule  is  in  force,  and  the  beneficiaries  under  a 
will  are  held  to  be  incompetent  witnesses  at  probate,  the  con- 
tents of  a  lost  will  can  not  be  proved  by  the  sole  beneficiary 
and  by  a  disinterested  party.^<^^  Nor  can  the  declarations  of 
testator  be  offered  as  a  substitute  for  one  witness.^"^ 

§436.     Evidence  of  existence  of  will. 

In  order  to  establish  a  lost  will  the  evidence  must  first  dis- 
close the  fact  that  such  will  was  once  in  existence.  Direct 
evidence  of  those  who  saw  the  will  before  its  loss  or  destruc- 
tion   is    of  course    desirable.^*'^ 

§437.     Declarations  of  testator  as  to  existence  of  will. 

In  the  absence  of  such  evidence,  however,  proponents  are 
not  precluded  from  establishing  the  will,  but  may  introduce 
other  evidence.  The  weight  of  authority  is  that  the  declara- 
tions of  testator  are  admissible  as  tending  to  prove  the  exist- 
ence of  the  will.^^^ 

502  Jones  V.  Casler,  139  Ind.  382;  Page,  118  III.  57G;  Steele  v.  Price, 
Keesy  v.  Dimon,  91  Hun.  642;  Har-  5  B.  Mon.  (Ky.),  58;  Collagan  v. 
ris  V."  Harris,  10  Wash.  555.  Burns,  57  Me.  449 ;  Pickens  v.  Davis, 

503  Keesy  v.  Dinion,  91  Hun,  642.  134    Mass.    252;    Commonwealth    v. 

504  Clark  v.  Turner,  50  Neb.  290:  Trefethen,  157  Mass.  180;  Williams 
Harris  v.  Harris,  10  Wash.  555.  v.   Williams,   142   Mass.   515;    Lane 

505  Kotz  V.  Belz,  178  111.  434.  v.    Moore,    151    Mass.    87 ;    Lawyer 

506  Sugden  V.St.  Leonards,  1  Prob.  v.  Smith,  8  Mich.  412;  Lambie's 
Div.  154;  Keen  v.  Keen,  L.  R.  3  Estate,  97  Mich.  49;  Harring  v. 
Prob.  ADiv.  105;  Woodward  v.  Allen,  25  Mich.  505;  Collyer  v. 
Goulstone,  11  App.  Cas.  469;  Harris  Collyer,  110  N.  Y.  481;  Knapp  v. 
V.  Knight,  15  Prob.  Div.  170;  Goods  Knapp,  10  N.  Y.  276;  Behrens  v. 
of  Ball,  25  L.  R.  Ir.  556;  Boudinot  Behrens,  47  0.  S.  323;  Youndt  v. 
v.  Bradford,  2  Dall.  266;  South  worth  Youndt,  3  Grant's  Cas.  (Pa.),  140; 
V.  Adams,  11  Biss.  256;  Weeks  v.  Foster's  Appeal,  87  Pa.  St.  67; 
McBeth,  14  Ala.  474;  Johnsoh's  Durant  v.  Ashmore,  2  Rich.  Law 
Will,  40  Conn.  587:  Dawson  v.  (S.  Car.),  184;  Minkler  v.  Mink- 
Smith,  3  Houst.  (Del.),  335:  Pat-  ler,  14  Vt.  125;  Valentine's  Will, 
terson  v.  Hickey,  32  Ga.  156;  In  re  93  Wis.  45. 


518  LAW     OF    WILLS. 

§438.     Proof  of  execution. 

The  execution  of  a  will  must,  as  a  rule,  be  proved  with  the 
same  strictness  with  which  the  execution  of  an  ordinary  will 
must  be  proved,^"^  except  that  from  the  necessities  of  the  case 
such  proof  of  handwriting  as  is  admissible  in  probate  of  or- 
dinary wills   is    of  course    impossible.^'^'* 

Generally,  the  execution  should  be  proven  by  the  subscrib- 
ing witnesses  if  accessible ;  if  not,  some  one  who  saw  the  will 
executed,  other  than  a  subscribing  witness  may  testify.^^^  The 
declarations  of  testator  can  not  be  admitted  in  evidence  to 
show  execution  in  the  manner  prescribed  by  law.^^® 

§439.     When  presumption  of  execution  arises. 

But  where  the  evidence  discloses  that  the  will  was  in  the 
possession  of  a  party  interested  in  suppressing  the  will,  it  is 
held  that  a  presumption  arises  that  the  will  which  such  in- 
terested party  has  suppressed  was  executed  in  the  form  pre- 
scribed by  law.^^^ 

Where  the  will  was  admitted  to  probate  before  it  was  lost, 
evidence  of  that  fact  disi>enses  with  proof  of  execution,  as  the 
presumption  of  due  execution  is  then  conclusive,^^^  and  the 
fact  of  admission  to  probate  is  sufficiently  established  by  the 
testimony  of  an  abstracter  of  title  that  the  will  was  filed  and 
recorded  in  the  probate  court.^^^ 

§440.     Evidence  of  contents. 

After  the  existence  and  execution  of  the  lost  will  have  been 
proved,  evidence  of  the  contents  is  admissible.     While  this  is 

BOiLasance's  Estate,  7  Ohio  Dec.  411;   Lambie's  Estate,  97  Mich.  49. 

246;  5  Ohio,  N.  P.  20.  5i2  Kotz  v.  Belz,   178   111.  434    (a 

50S  In  re  Page,  118  111.  576;  Har-  will    burned   in    the   Chicago   fire); 

ris  V.  Harris,   10  Wash.  555.  Marshall    v.    Marshall,    42    S.    Car. 

509Lasance's  Estate,  7  Ohio  Dec.  436    (a   will    destroyed    during   the 

246;  5  Ohio,  N.  P.  20.  Civil  War)  ;  Counts  v.  Wilson,  45  S. 

510  McDonald  v.  McDonald,  142  Cat.  571;  McNeefly  v.  Pearson 
Ind.  55;  Mercer  v.  Mackin,  14  Bush.  (Tenn.  Ch.  App.),  affirmed  Sup.  Ct. 
(Ky.)    434;    Cheever  v.  North,   106  42  S.  W.  165. 

Mich.  390.  ^^3  Kotz  v.  Belz,  178  111.  434. 

511  Anderson    v.     Irvin,     101     111. 


LAW    OF    WILLS. 


the  logical  order  of  evidence,  it  is  not,  however,  necessary  that 
it  follow  this  order  in  actual  time  of  introduction  It  is  su&- 
cient  if  all  the  necessary  evidence  is  introduced  before  the 
case  is  submitted  to  the  jury.* 

After  the  loss  of  the  original  has  been  proved,  secondary 
evidence  may  be  introduced  to  show  its  contents.     The  weight 
of  authoritv  in  America  is  that  there  are  degrees  m  secondary 
evidence,  and  that  secondary  evidence  of  the  highest  degree 
should  either  be  offered,  or  its  absence  accounted  for  before 
evidence  of  a  lower  degree  is  offered.     Thus,  if  a  copy  of  the 
will  is  iu  existence,  and  it  can  be  identified  as  a  copy  by  one 
who  has  compared  it  with  the  original,  such  copy  should  be 
introduced  in  evidence  to  prove  the  contents  of  the  original 
will^^'      So,  where  the  will  was  recorded  for  probate  pur- 
poses, during  the  life  of  testator,  such  record  is  admissible 
in  evidence,  though  the  clerk  who  ^ade^  the  record  and  com- 
pared his  copv  with  the  original  is  dead.^^^ 

It  was  held,  however,  whpre  the  will  was  recorded,  m  a 
suit  for  its  construction,  merely  as  a  matter  of  formal  certifi- 
cation of  evidence  in  that  suit  that  such  record  was  not  of 
itself  admissible  to  establish  the  existence  and  contents  of  the 

will-'"'  ,  .       ,     .    M 1 

The  testimony  of  one  who  read  over  the  will  is  admissible 

to  show  its  contents,  and  such  witness  may  use  a  certified  copy 

of  the  will  to  refresh  his  memory,  where  the  will  was  lost  after 

probate,  and,  therefore,  such  certified  copy  could  be  had.^^^ 

But  the  evidence  of  a  witness  who  saw  the  will,  but  did  not 

read  it,  is,  of  course,  of  no  effect  whatever  as  to  its  contents."^ 

And  a  witness  to  whom  testator  read  over  the  will  can  not 

testify  to  its  contents,  as  his  testimony  would  be  either  hear- 

*  Marshall  V.  Marshall,  42  S.  Car.  and    testator    had    spoken     of     this 

436    20  S    E    298  record  of  his  will  in  his  lifetime. 

514  Coddington  V.  Jenner,  57  N.  J.  ^^^  McNeely  v.  Pearson  (Tenn.  Ch. 
Eq.  528;  41  Atl.  874;  affirmed,  45  App.),  42  S.  W.  165,  affirmed  by 
Atl    1090;  Lasance's  Estate,  5  Ohio,  Sup.  Ct. 

N    P    90-  7  Ohio  Dec.  246.  5i7  McNeely    v.     Pearson     (Tenn. 

515  Harris    v.    Harris,    10    Wash.       Ch.  App.) ,  42  S.  W.  165. 

555.     In  this  case  the  deputy  clerk  5i8  Harris    v.    Harris,    10    Wash, 

who  recorded  the  will  was  also  one       555. 
of  the  subscribing  witnesses  thereto. 


.520  LAW     Oli'     WILLS. 

saj,  or  else  evidence  of  the  declarations  of  testator  concern- 
ing the  contents  of  his  will,  unless  the  circumstances  are  such 
as  to  make  testator's  declarations  admissible.^ ^* 


§441.     Declarations  of  testator  as  to  contents. 

The  rule  in  force  in  most  jurisdictions  is  that  the  declara- 
tions of  testator  are  admissible  to  establish  the  contents  of  tke 
lost  will  in  whole  or  in  part.^^^ 

In  some  states  it  is  required  bv  statute  that  the  contents  of 
a  lost  will  shall  be  established  by  the  testimony  of  at  least 
two  witnesses  before  it  can  be  admitted  to  probate.^^^  Wkere 
such  rule  is  in  force  the  declarations  of  testator  are  held  in- 
admissible to  establish  the  contents  of  the  written  will,  at 
least  where  the  direct  evidence  of  two  witnesses  who  saw  the 
will    is  not  offered.^^^ 

In  the  cases  cited  but  little  attention  was  given  to  the  ques- 
tion whether  the  declarations  of  testator  are  sufficient  to  es- 
tablish the  contents  of  the  will,  when  such  declarations  are  the 
sole  evidence  upon  the  subject.  It  seems  to  be  settled  that 
such  declarations  are  admissible  to  corroborate  other  evidence 
of  the  contents.^^^  But  where  this  question  has  been  passed 
upon  specifically  by  the  courts,  it  has  been  held  that  the  dec- 
larations of  testator  taken  alone  are  not  sufficient  to  establish 
the  contents  of  the  lost  will,  at  least  where  there  is  no  evidence 
to  show  that  the  will  was  fraudulently  suppressed.^^^ 

519  Clark  V.  Turner,  50  Neb.  290.  522  Clark  v.  Turrrer,  50  Neb.  290 ; 

520  McDonald  v.  McDonald,  142  Harris  v.  Harris,  10  Wash.  555. 
Tnd.  55;  Schnee  v.  Schnee,  61  Kan.  523  Sugden  v.  St.  Leonard's,  L.  R. 
G43;  60  Pac.  738;  Cheever  \.  1,  P.  154;  Southwortli  v.  Ad- 
North,  106  Mich.  390;  Lambie's  Es-  aras,  11  Biss.  (U.  S.),  256;  In  re 
tate,  97  Mich.  49;  Lautenschlager  Page,  118  111.  570:  Hope's  Appeal. 
V.  Lautenschlager,  80  Mich.  285;  48  Mich.  518;  Lambie's  Estate,  97 
Penny  v.  Croul,  87  Mich.  15;  Brown  Mich.  49. 

V.  Bell,  58  Mich.  .58;  Schofield  v.  524  Quick  v.  Quick,  3  Sw.  &  T. 
Walker,  58  Mich.  96;  Hope's  Ap-  442;  Woodward  v.  Goulstone,  11 
peal,  48  Mich.  518  ;  Lane  v.  Hill  App.  Cas.  469  ;  Chisholm  v.  Ben,  7  B. 
68  N.  H.  275,  398;  Valentine's  Mon.  (Ky.),  408;  Mercer  v.  Mack- 
Will,  93  Wis.  45.  in,  14  Bush.    (Ky.),  434;   Clark  v. 

521  Jones  V.  easier,  139  Ind.  382;  Turner,  50  Neb.  290;  Clark  v.  Mor- 
Harris  v.  Harris,  10  Wash.  555.   See  ton,  5  Rawle  (Pa.),  235. 

Sec.  435. 


LAW    OF    WILLS. 


521 


Willie  the  question  of  tlie  sufficiency  of  tlie  unsupported 
declarations  of  testator  to  establish  the  contents  of  a  lost  will 
has  not  been  adjudicated  it  has  been  discussed  by  the  courts 
to  some  extent.^^^ 


§442.     Evidence  of  circumstances  of  destruction. 

In  the  absence  of  any  evidence,  as  to  the  circumstances 
of  destruction,  a  presumption  arises  that  a  will  which  was  m 
the  custody  of  testator,  and  which  can  not  be  found  at  his 
death,  was  destroyed  by  him  with  intention  of  revoking  it.^^e 
But  where  the  will  was  not  in  the  custody  of  testator,  the  fact 
that  it  can  not  be  found  at  his  death  does  not  raise  the  pre- 
sumption that  he  destroyed  it  with  the  intention  of  revoking 
it,  and,  accordingly,  evidence  of  the  custody  of  the  will  is  al- 
ways admissible.^^^ 

But  where  the  will  was  kept  in  the  custody  of  the  drafts- 


525  In   Clark   v.   Turner,   50   Neb. 
290,  the  court  said: 

"Chisholm    v.    Ben     [7    B.    Mon. 
(Ky.)    408]   intimated  that  on  ade- 
quate proof  that  the  will  had  been 
fraudulently  suppressed  by  the  heirs, 
the   evidence   referred   to   might   be 
sufficient  by   virtue   of   the  maxim, 
'omnia  praesumuntur  contra  spolia- 
tor em.'     This  maxim  is  not  easy  to 
apply.     It  has  sometimes  been  held 
to  justify  the  production  of  slighter 
proof   than  would   otherwise  be  re- 
quired.     Its    most    frequent    appli- 
cation is  for  the  purpose  of  allow- 
ing   secondary    evidence.     It    would 
■  certainly  be  very  dangerous  to  ex- 
tend it  so  far  as  to  relieve  a  party 
charged  with  proving  the  contents 
of    a    written    instrument   from   all 
obligation  to  produce  some  evidence 
of  a  competent  character;  but  this 
phase  of  the  ease  was  not  submitted 
to  the  jury  by  any  instruction  given 
or  asked,  at  least  so  far  as  the  con- 
tents   of    the    will    are    concerned. 
The  general  verdict  for  the  contest- 


ants  precludes   us   from   examining 
the   evidence   on    this   point   on   the 
theory   that  spoliation   by   the   con- 
testant was  established.     The  policy 
of    the    statute    of    wills,    like    the 
statute  of  frauds,  is  that  it  is  bet- 
ter that  occasional  injustice  should 
be   done   in   exceptional   cases   upon 
failure    of    legal    proof,    than    that 
transactions     within     the     statute 
should  in  all  cases  be  left  to  the  un- 
certainties  of    parol    evidence.     So 
the   courts   in   giving   eflfect   to   the 
statutes    should    pursue    the    same 
policy    and    should    avoid    meeting 
hard  cases  by  adopting  rules  which 
generally  applied  would  defeat  the 
objects  of  the  legislature." 

526  Gardner  v.  Gardner,  177  Pa. 
St.  218 ;  Harris  v.  Harris,  10  Wash. 
555;  Steinke's  Will,  95  Wis.  121. 

527  Coddington  v.  Jenner,  57  N. 
J.  E.  528;  41  Atl.  874,  affirmed  45 
Atl.  1090;  Gardner's  Estate,  164  Pa. 
St.  420;  Harris  v.  Harris,  10  Wash. 
555;   Steinke's  Will,  95  Wis.  121. 


522 


LAW     Off     WILLS. 


man  in  his  safe,  to  which  testator  had  access,  and  which  he 
had  frequent  opportunities  to  destroy,  it  was  held  that  this 
was  insufficient  to  overcome  the  presumption  of  destruction 
by  testator,  arising  from  its  non-production.^^^ 

§443.     Declarations  of  testator  as  to  circumstances  of  destruction. 

The  declarations  of  testator  are  held  to  be  admissible  in  evi- 
dence, both  to  rebut  the  presumption  of  revocation  which 
arises  from  the  disappearance  of  a  will  which  was  in  tes- 
tator's custody,  and  to  strengthen  such  jiresumption.^^^  Thus, 
the  declarations  of  testatrix  made  within  three  days  of  her 
death,  that  her  will  was  still  in  existence,  and  that  the  notary 
with  whom  she  had  originally  left  it,  still  had  it,  were  held 
sufficient  to  rebut  any  presumption  of  revocation  arising  from 
the  fact  that  the  will  could  not  be  found,  and  that  the  notary 
testified  that  he  did  not  have  the  will,  and  believed  that  tes- 
tatrix had  it  last.^^*^ 


528  Keesy  v.  Dimon,  91  Hun,  G42. 
(The  court  was  further  strengthened 
in  this  conclusion  by  the  fact  that 
testator  had  subsequently  made  and 
revoked  another  will.) 

cioLambie's  Estate,  97  Mich.  49 
Belirens  v.  Behrens,  47  O.  S.  323 
Gardner's  Estate,  164  Pa.  St.  420 
Harri:i  v.  Harris,  10  Wash.  555 
Steinke's  Will,  95  Wis.  121. 

"Where,  as  here,  it  is  established 
that  the  testatrix  properly  executed 
a  valid  will,  and  the  same  was  last 
known  to  be  in  her  possession,  but 
can  not  be  found  on  her  death, 
there  is  a  prima  facie  presumption 
that  she  destroyed  it  with  the  in- 
tention of  revoking  it,  but  such  pre- 
sumption may  be  overcome  by  com- 
petent evidence.  .  .  Of  course,  if 
such  subsequent  declarations  are  ad- 
missible   in    evidence    to    overcome 


such  presumption  they  are  also  ad- 
missible to  support  such  presump- 
tion. True,  upon  the  principles  al- 
ready stated  in  respect  to  admit- 
ing  such  declarations  on  the  ques- 
tion of  undue  influence,  her  subse- 
quent declarations  to  the  effect  that 
she  had  destroyed  her  will  by  burn- 
ing the  same  or  by  any  other  of  the 
prescribed  methods,  would  not  be 
evidence  of  the  fact  so  declared, 
much  less  that  such  destruction  was 
with  the  intent  to  revoke,  but  they 
would  tend  to  prove  that  she  died, 
in  the  belief  that  she  had  left  no 
will,  and  thus  support  the  presump- 
tion of  revocation  arising  from  the 
fact  that  it  Avas  last  known  to  be 
in  her  j^ossession,  but  could  not  be 
found  upon  her  death."  Valentine's 
Will,  93  Wis.  45. 

530  Steinke's  Will,  95  Wis.  121. 


LAW    OF    WILLS. 


523 


5444,     Admissions  against  interest. 


The  admissions  of  parties  interested-  made  against  their 
interest  are  said  to  be  admissible  in  questions  of  revocation 
and  spoliation.'^^^ 

§445.     Evidence  of  character  and  motives  of  testator  and  alleged 
spoliator. 

Evidence  of  testator's  character  is  admissible,  in  so  far  as 
it  shows  his  tenacity  of  purpose,  and  thereby  the  probability 
of  his  revoking  his  will.^^^  So,  in  evidence  of  testator's  feel- 
ing towards  those  who  would  take  if  he  were  to  die  inte- 
state.^""^^  So  evidence  of  the  conduct,  character,  and  interest 
of  those  who  were  about  testator,  and  had  opportunity  to  de- 
stroy his  will,  is  admissible  as  bearing  upon  the  question 
whether  testator  destroyed  his  will  or  someone  else.^^^ 

VII— EVIDENCE  IN  CASES  OF  HOLOGRAPHIC  AND 
NUNCUPATIVE   WILLS. 


§446.     Holographic  wills. 

The  only  evidence  which  is  ordinarily  necessary  or  admis- 
sible at  the  probate  of  a  holographic  will  is  evidence  of  tes- 
tator's handwriting.  This  may  be  proved  by  any  competent  wit- 
ness who  has  such  knowledge  of  testator's  handwriting  that  he 
can  testify  thereto.  Under  most  modem  statutes  the  beneficiaries 
under  the  will  are  coni})etent  witnesses.^^^  However,  it  has 
been  said  that  in  case  of  doubt,   as  to  whether  the  writing 

531  Sugden  v.  St.  Leonard's,  1  P.  the  person  who  would  be  benefited 
D.   154 ;   Lambie's  Estate,  97   Mich.       by  the  revocation.] 

49;  Nelson  v.  Whitfield,  82  N.  Car.  534  Gardner   v.   Gardner,    177   Pa. 

46.  St.  218. 

532  Gardner's  Estate,  164  Pa.  St.  535  Morvant's  Succession,  4.5  La. 
420;  Gardner  v.  Gardner,  177  Pa.  Ann.  207;  Martin  v,  MeAdams,  87 
St.  218.  Tex.  22.5:  27  S.  W.  255.  distinguish- 

533  Brown  v.  Brown,  10  Yerg.  ing  Lewis  v.  Aylott.,  45  Tex.  190 
(Tenn.),  84.  [Where  evidence  was  (attesting  witnesses  to  a  nuncupa- 
received  as  to  testator's  hatred  for  tive  will ) . 


624  LAW    OF    WILLS. 

was  meant  as  a  will,  declarations  of  testator  to  the  effect  that 
he  would  not  make  a  will    are  admissible.^^^ 

The  burden  of  proof  is  upon  the  propounder  of  a  holographic 
will.^^^  Where  a  holographic  instrument  is  treated  as  a  will, 
only  when  found  among  testator's  valuable  papers,  the  fact 
that  testator  had  such  an  instrument  in  his  possession  before 
his  death,  and  that  it  was  found  among  his  valuable  papers 
on  the  day  after  his  death,  makes  out  a  prima  facie  case  that 
it  is  his  will.* 

It  is  said  that  a  holographic  will  should  not  be  held  -a 
forgery,  except  on  clear  evidence,  where  the  handwriting  is 
positively  identiiied.  "The  weight  of  the  testimony  to  justify 
a  judgment  annulling  a  will  should  make  it  appear  with  some 
certainty  that  the  will  is  a  forged  paper."  ^^^ 

§447.     Nuncupative  wills. 

The  rules  applicable  to  the  execution  of  ordinary  written 
wills  apply  for  the  most  part  to  nuncupative  wills.  Owing 
to  the  fact  that  the  nuncupative  will  is  oral,  some  differences 
must  necessarily  exist.  Some  courts  have  apparently  held 
that  the  burden  of  proof  in  nuncupative  wills  is  greater  than 
in  ordinary  wills.  Thus  it  has  been  said  that  evidence  of 
nuncupative  wills  must  be  of  "the  clearest  and  most  convinc- 
ing character."  ^^^ 

The  requisite  number  of  witnesses  must  state  under  oath 
the  existence  of  all  facts  necessary  to  its  validity,  including 
the  rogafio  testiumJ''^^  Since  the  statutes  controlling  nuncu- 
pative wills  usually  provide  that  the  witnesses  must  be  dis- 
interested, the  beneficiaries  are  not  competent.^^^ 

536Crutcher       v.      Crutcher,  11  539  Lewis  v.  Aylott,  45  Tex.   190; 

Hump.   (Tenn.),  377.  Mitchell   v.  Vickers,  20  Tex.  377. 

537  Gaines's  Succession,  38  La.  540  Bundrick  v,  Haygood,  106  N. 
Ann.    123;    Collins   v.    Collins  (N.  Car.   4G8. 

Car.),  1899,  34  S.  E.  195.  54i  Vrooman  v.  Powers,  47  O.  S. 

538  Barlaw  v.  Harrison,  51  La.  191 ;  Lewis  V.  Aylott,  45  Tex.  190. 
Ann.  875;  25  bo.  378.  See  Sec.  238. 


525 

LAW    OF-  WILLS. 


Viii-EVIDENCE  OF  REVOCATION. 


§448.     Burden  of  proof. 

Upon  the  issue  of  revocation  the  burden  of  proof  is  always 
upon  the  .arty  alleging  such  revocation-^"  and  in  the  absence 
of  any  evidence  of  the  existence  of  a  later  w.ll  it  is  error  to 
charge  that  it  is  for  proponents  to  show  that  the  will  had  not 
been  revoked  or  cancelled.'^^^  _ 

This  statement,  of  course,  assumes  that  evidence  of  execu- 
tion and  the  like  has  been  offered,  tending  to  establish  the 
facts  necessary  to  the  validity  of  the  will. 

§449.     Presumptions  where  will  is  missing. 

If  a  will  or  codicil,  known  to  have  been  in  existence  dur- 
ing testator's  lifetime,  and  in  his  custody,  can  not  be  found 
at  his  death,  a  presumption  arises  that  such  will  was  destroyed 
bv  testator  in  his  lifetime  with  the  intention  of  revoking, 
akd  in  the  absence  of  rebutting  evidence  this  presumption 
is  sufficent  to  justify  a  finding  that  the  will  was  revoked 
The  reason  underlying  this  rule  was  given  by  Chancellor 
Walworth  in  Betts  v.  Jackson.-'^ 

-Legal    presumptions    are    founded    upon    the    experience 

.*2  01mstead's    Estate,    122     Cal.  ner,    120     ^--27^7^^698' 

224-   54  Pac.  745;   Behrens  v.  Beh-  Hope,  52  Mich.  65;   17  N    W.  698 

rens:  47  0.  S.  323   (modified  by  pe-  Cheever   v.   North,    106   M.eh.       0 

culiarity     of     practice     in    Ohio)  ;  Behrens  v.   Behrens    47   OS    323 

B^::  V.  HartLn,  115  Pa.  St.  32;  ;7-^"^^^^"^^;^tl^,?'Tohi^) 

Padelford's  Estate,   190  Pa.   St.   35.  Blymeyer's    Will,    Goebd     (Oh.o) 

5.3  Brown    v.    Walker,    -    Miss.  14;  loser's  Appeal    87  Pa^  St.  67 

_     j^   g^    -04  Stewart's    Will,    149    Pa.    St.    ill, 

544Wargent  ;.  HoUings,  5  Hagg.  Gardner    v.   Gardnei"^    177     Pa^  St 

Ecc    245-    Lillie  v.   LiUie,   3  Hagg.  218;   Durants  v.  Ashmore,  2  Rich. 

?cc'    184      Jacques    v.    Horton,    76  (S.  Car.) ,  184 ;  Minkler  v.  Minkler 

2:238;'johln.Wn.40(>i..  14^-   ^^^^^^  ^:^' I 

^Jtu.^uZr\^.  SLejre..Cir.App.)nS99),53 

434;  Minor  v.  Guthrie,  —  Ky.  -;  S-  ^^  •  bU- 

4  S.  W.  179;  Davis  v.  Sigourney.  8-  ^^^  6  Wend.  173. 

Met.    (Mass.),  487;   Howell  v.  Hor- 


526  LAW     OF     WILLS. 

and  observation  of  distinguished  jurists  as  to  what  is  usually 
found  to  be  the  fact  resulting  from  any  given  circumstances, 
and  the  result  being  thus  ascertained,  whenever  such  circum- 
stances occur  they  are  prima  facie  evidence  of  the  fact  pre- 
sumed; and  I  have  no  doubt  that  five  wills,  made  with  all 
due  formality,  have  been  destroyed  by  the  testators  either  in 
secret  or  when  no  one  was  present  to  be  a  witness  to  prove 
the  fact,  to  where  there  has  been  one  destroyed  or  suppressed 
bv  fraud,  or  lost  by  time  or  accident  before  the  death  of  the 
testator."  ^"^^ 

For  the  same  reason  the  finding  among  the  papers  of,  tes- 
tator, apparently  in  his  custody  during  his  lifetime,  of  a 
will  torn,  cancelled  and  the  like,  raises  a  presumption  that 
such  act,  manifest  upon  the  will,  wasv  done  by  testator  in  his 
lifetime  with  intent  to  revoke  the  will.^^'^ 

This  presumption  is  not  conclusive.  At  the  utmost  it  is 
a  prima  facie  presumption  of  law,  and  may  be  rebutted  by 
showing  either  that  the  act  was  not  done  by  testator  or  was 
not  done  animo  revocandi.^'^^ 

Where  the  will  is  destroyed  the  burden  of  proof  is  upon 
the  party  alleging  that  it  was  not  destroyed  by  testator,  or 
was  destroyed  by  him  while  incompetent  to  revoke  his  will.^"*^ 

Whether  any  presumption  arises  where  a  will  was  executed 
in  duplicate,  and  one  of  the  originals  can  not  be  found,  was 


546  Quoted  and  approved  in  Beh-  Eq.  501 ;   Smock  v.  Smock,  3  Stock- 
rens  v.  Behrens,  47  O.  S.  323.  et,  156;  Tomlinson's  Estate,  133  Pa. 

547  Christmas  v.  Whinyates,  3  Sw.  St.  245. 

&   Tr.   81;    32   L.  J.   P.   73;    9  Jur.  548  Whitely  v.  King,  17  C.  B.  N. 

(N.   S.),  283;   8  L.  T.  801;    11  W.  S.    756;    Johnson's    Will,    40    Conn. 

R.   371;     Davies   v.  Davies,   1    Lee,  587;     Smiley  v.   Gambill,   2    Head. 

444;    Lambell  v.   Lambell,   3  Hagg.  (Tenn.),    164;    Mcintosh    v.   Moore 

568;    Baptist    Church    v.    Robbarts,  (Tex.   Civ.   App.),   1899;    53   S.  W. 

2    Barr    110;    King    v.  Ponton,  82  611;   Valentine's  Will,  93  Wis.  45; 

Cal.    420;    Olmstead's    Estate,    122  Steinke's  Will,  95  Wis.  121;  Shack- 

Cal.  224;  Woodfill  v.  Patton,  76  Ind-  lett  v.  Roller    (Va.)    (1899)  ;   34  S. 

575;     Steele    v.    Price,    5    B.    Mon.  E.  492. 

(Ky. ),  58;   Townshend  v.  Howard,  549  Mcintosh  v.  Moore   (Tex.  Cir. 

86  Me.  285;   Bennett  v,   Sherrod,  3  App.    1899);     Shacklett    v.    Roller 

Ired.    303;    White's   Will,   25   N.   J.  (Va.)    (1899)  ;  34  S.  E.  492. 


LAW     OF    -WILLS.  527 

discussed  in  a  recent  Michigan  case,  but  as  the  record  did 
not  present  the  question  properly  it  was  not  decided.^ ^° 

§450.     Declarations  of  testator.    ■ 

The  declarations  of  testator,  by  the  weight  of  authority, 
are  admissible  to  show  his  intention  to  revoke  or  not  to  re- 
voke, where  such  intention  is  material,  whether  such  decla- 
rations strengthen  or  rebut  any  presumption  raised  from  the 
established  facts ;  ^^^  even  where  such  declarations  are  made 
subsequent  to  the  time  of  the  alleged  revocation.^^^ 

Thus,  where  a  will  could  not  be  found  at  the  death  of 
testatrix  a  presumption  arose  that  testatrix  had  destroyed  it, 
since  the  notary  who  drew  it  testified  that  he  thought  that 
testatrix  had  it ;  but  her  declarations  were  admissible  to  rebut 
this  presumption ;  and  such  declarations  made  within  three 
days  of  her  death  to  the  effect  that  the  will  was  in  existence 
and  unrevoked,  and  that  it  was  in  the  notary's  custody,  were 
sufficient  to  justify  a  finding  that  the  will  was  not  revoked.^^^ 

Where  a  will  could  not  be  found  at  testator's  death,  the 
declarations  of  testator  to  the  effect  that  he  had  destroyed  it 
were  admissible  to  strengthen  the  presumption  of  revoca- 
tion.^^^  Testator's  declarations  tending  to  show  that  an  act 
of  destruction  was  committed  while  he  was  insane  are  admis- 

550  Hurton  v.  Hurton,  113  Mich.  Youndt  v.  Youndt,  3  Gr.  (Pa.), 
634.     See  Sec.  253.  140;  Stekike's  Will,  95  Wis.  121. 

551  Keen  v.  Keene,  42  L.  J.  P.  61 ;  Contra,  Caenian  v.  Van  Harke,  33 
L.  R.  3  P.  105 ;  29  L.  T.  247 ;  John-  Kan.  333.  holding  that  such  decla- 
son's  Will,  40  Conn.  587 ;  Chisholm  rations  are  admissible  only  when 
V.  Ben,  7  B.  Mon.  (Ky.),  408;  Col-  part  of  the  res  gestae,  citing  Hayes 
logan  V.  Burns,  57  Me.  449 ;  Town-  v.  West,  37  Ind.  21 ;  Mooney  v. 
send  V.  Howard,  86  Me.  285;  Pick-  Olsen,  22  Kan.  69;  Waterman  v. 
ens  V.  Davis,  134  Mass.  252;  Gage  v.  Whitney,    11    N.   Y.    157. 

Gage,    12    N.    H.     371;     Smock     v.  553  steinke's    Will,    95    Wis.    121. 

Smock,   11  N.  J.  Eq.   156;   Behrens  So  Blymeyer's  Will,  Goebel    (Ohio). 

V.  Behrens,  47  O.  S.  323;  Smiley  v.  14;   Wiswell's  Will,  Goebel    (Ohio), 

Gambill,  2  Head  (Tenn.),  164;  Val-  19. 

entine's  Will,  93  Wis.  45 ;  Steinke's  554  Behrens  v.   Behrens,   47   O.   S. 

Will,  95  Wis.  121.  323;      Shacklett     v.      Roller      (Va. 

552  Boyle  V.   Boyle,   158   111.  228;  1899)  ;  34  S.  E.  492. 
Behrens  v.  Behrens,  47   0.   S.   323; 


528  LAW     OF     WILLS. 

sible.^^'^  So  are  his  declarations  made  before  he  became  in- 
sane, tending  to  show  that  he  had  revoked  the  will  before 
that  time.^^^ 

Where  a  Mall  had  been  torn  and  then  pasted  together,  the 
declarations  and  acts  of  testator  while  collecting  the  pieces 
of  the  will  and  pasting  them  together  were  admissible  to  show 
that  no  revocation  was   intended.^^''^ 

A  memorandum  made  bj  testatrix  on  the  will  was  admis- 
sible to  show  that  the  act  of  revocation  was  done  by  her  and 
with  intention  to  revoke  the  will.^^* 

But  the  declarations  of  testator  are  not  admissible  to  estab- 
lish the  fact  of  the  revocatory  act,^^^  and  his  declarations  are 
not  admissible  to  establish  the  existence  of  a  later  will  revoking 
the  one  offered  for  probate ;  ^^^  nor  are  declarations  of  the 
testator  that  he  had  made  his  -will  in  duplicate  and  had  de- 
stroyed one  of  the  originals  in  order  to  revoke  both,  admis- 
sible.^^^  And  where  the  will  is  in  fact  cancelled,  the  declara- 
tions of  testator,  while  admitted  in  evidence  without  criticism 
from  the  reviewing  court,  were  held  not  conclusive  as  to  the 
fact  of  revocation.^  ^^ 

Where  the  will  is  in  fact  cancelled,  declarations  of  testator 
tending  to  show  his  dissatisfaction  with  the  old  will  and  his 
intention  to  make  a  new  will  are  admissible.^^^ 

Where  no  fact  of  revocation  is  sho%vn,  the  declarations  of 
testator  that  he  intended  to  revoke  his  will  are  inadmissible.^^^ 


555  Johnson's  Will,  40  Conn.  587.  sei  Atkinson    v.    Morris     (1897), 

556Shack]ett      v.      Roller,       (Va.  Prob.   40. 
1899);   34  S.  E,  492.  562  Olmstead's    Estate,    122     Cal. 

557  Collagan  v.  Burns,  57  Me.  449.  224. 

55sKirkpatrick's     Will,    7    C.    E.  563  Townsend   v.   Howard,   86  Me. 

Gr.    (N.  J.),  463.  285;    Semmes   v.    Semmes,   7    Harr. 

559  Slaughter  v.  Stevens,  81   Ala.  &  J.   (Md.),  388;  Johnson  v.  Brails- 
418;    Toebbe    v.    Williams,    80    Ky.  ford,   2   Nott.   &   McC.    272:    Hairs- 
661 ;    Lewis   v.    Lewis,    2    W.    &    S.  ton  v.  Hairston,  30  Miss.  276. 
(Pa.),  455.  564  IJarnewall  v.  Murrell,  108  Ala. 

560  White's    Will,    25    X.    J.    Eq.  366;   Taylor  v.  Cox,  153  111.  220. 
501;  Noyes's  Will,  61  Vt.  14. 


529 

LAW    OF    WILLS. 

§451.     Declarations  of  legatees. 

The  declarations  of  a  legatee  or  devisee  under  a  will,  as 
to  the  fact  of  revocation  of  such  will,  are  admissible  m  evi- 
dence if  made  after  the  interest  of  such  beneficiary  arose, 
and  if  they  do  not  affect  the  interests  of  other  beneficiaries.^*'^ 

§452.     Declarations  of  others. 

The  declarations  of  others  than  testator  or  legatees  are 
almost   alwavs   inadmissible   as   being   hearsay   evidence. 

Thus,  declarations  made  by  testator's  sister  to  the  effect 
that  she  had  destroyed  his  will  without  his  knowledge  or  con- 
sent are  inadmissible  to  rebut  the  presumption  of  revocation 
which  arises  from  the  fact  that  the  will  which  was  in  testa- 
tor's custody  can  not  be  found  at  his  death.^*'^ 

§453.     Revocation  by  lost  will.— Burden  of  proof. 

When  a  lost  or  missing  will  is  sought  to  be  established  as 
a  means  of  effecting  a  revocation  of  the  will  offered  for  pro- 
bate, the  burden  of  proof  is  upon  those  alleging  it  to  show 
that  it  was  properly  execnted,^*'^  and  also  that  its  contents 
were  such  as  to  revoke  the  former  will,  by  revocation  clause  or 
inconsistency  with  such  will.^^^ 

§454.     Presumptions. 

However,  where  beneficiaries  under  an  earlier  will  sup- 
press a  later  one,  the  presumption  arises  that  the  later  will 
was   duly  and  legally  dra^vn   and   executed.^^^ 

In  many  jurisdictions,  as  we  have  seen,  the  revocation  of  a 
later  revoking  will  can  not  revive  an  earlier  will  at  all  where 

5fi5  Lambie's  Estate,  97  Mich.  49.  Johnson's  Will,  40  Conn.  587  ;  Stern- 

r.fi6  Boyle   V.   Boyle,    158    111.   228.  berg's     Estate,   94    lo.    305;     Davis 

r.67\Vest   V.   West,   144   Mo.    119;  v.  Sigourney,  8  Met.    (Mass.),  487; 

4G     S.   W.    139;     McKenna    v.   Mc-  Cheever   v.    North,    106   Mich.    390; 

Michael,  189  Pa.  St.  440.  Day    v.    Day    (N.    J.    Eq.)  ;    2    Gr. 

568McIntire  v.   Melntir6,   102  U.  Ch.   549;    Knapp   v.   Knapp,    10   N. 

S.  383;  Knox  v.  Knox,  95  Ala.  495 ;  Y.  270. 

569  Lambie's  Estate,  97  Mich.  49. 


580  LAW    OF    WJLLS. 

the  later  will  contained  a  clause  of  express  revocation,  unless 
the  earlier  will  is  republished.^ ^"^ 

In  such  jurisdictions  as  permit  the  revocation  of  a  later 
will  to  revive  the  earlier  one  without  formal  republication, 
there  is  considerable  diversity  as  to  the  presumptions  arising 
upon  the  revocation  of  the  later  will. 

In  one  class  of  jurisdictions,  by  force  of  the  statute,  the 
intention  to  revive  the  earlier  will  must  appear  expressly 
from  the  terms  of  such  revocation,  there  being  no  presump- 
tion of  an  intention  to  revive  the  earlier  will  from  the  revo- 
cation of  the  earlier  will  alone.^'^^ 

As  we  have  seen,  parol  evidence  is  sufficient  in  some  ju- 
risdictions to  show  testator's  intention  to  revive  the  earlier 
will.^^^  But  such  evidence  must  clearly  show  his  intention 
to  revive  his  earlier  will  when  he  revoked  his  later  one. 

Thus,  where  testator  had  made  three  wills  at  different 
times,  the  two  later  ones  containing  clauses  of  express  rev- 
ocation, and  had  at  different  times  said  that  he  would  keep 
them  all  till  he  decided  which  one  he  wanted,  the  fact  that 
only  the  second  will  could  be  found  at  his  death  was  not,  to- 
gether with  his  declarations,  sufficient  to  establish  the  fact 
that  he  had  revoked  the  third  will  with  the  intention  of  re- 
viving the  second.* 

Under  statutes  which  require  that  the  evidence  of  the  in- 
tention to  revive  the  earlier  will  by  revoking  the  later  be  in 
writing,  parol  evidence  is,  of  course,  inadmissible.^''^^ 

It  is  said  by  some  courts  that,  since  very  person  is  pro- 
sumed  to  know  the  law,  a  testator  who  marries  while  dom- 
iciled in  a  jurisdiction  where  marriage  alone  operated  as  a 
revocation  of  a  will,  must  be  conclusively  presumed  to  know 
that  such  act  on  his  part  revokes  the  will.^"^^  But  this  same 
result  may  be  reached  better  from  the  theory  that  the  mar- 

570  See  Sees.  271-274.  573 /„    re    Lones,    108    Cal.    688-, 

5T1  See  Sec.  274.  Stickney's  Will,  161  N.  Y.  42. 

572  Pickens    v.    Davis,    134    Mass.  574  Sloniger   v     Sloniger,    161    111. 

252.      See   Sees.   273,  274.  270. 
■  Williams  v.  Williams,  142  Mass. 

515. 


LAW     OF     WILLS. 


531 


riage  acts  as  a  revocation  of  the  will  independent  of  testa- 
tor's intention. 

The  fact  that  testator  drew  an  ink  line  through  a  legacy 
creates  a  presumption  that  he  intended  the  natural  conse- 
quence of  his  act,  where  by  the  local  law  this  act  effects  a 
partial  revocation.^'^^ 

§455.     Proof  of  revoking  deed. 

If  the  ground  for  claiming  a  revocation  is  that  the  will 
has  been  revoked  by  alteration  of  testator's  estate,  as  by  a 
deed  conveying  all  the  property  disposed  of  by  will,  the  deed 
must  be  proved  and  offered  in  evidence  in  order  to  establish 
the  fact  of  revocation.^ '^^ 

575  Batchelor's  Succession,  48  La.  s^e  Gable  v.  Rauch,  50  S.  Car.  &5. 

.^n,  278. 


532  LAW    Ol'"     W1LL.I3. 


CHAPTER  XX. 


CONSTRUCTION. 


GENERAL   PRINCIPLES   UNDERLYING  GONSTRUCnO*^ 

§456.     General  scope  of  construction. 

Upon  the  death  of  a  testator  the  practical  question  which 
the  law  is  called  upon  to  answer  is,  What  disposition  shall  be 
made  of  his  property?  With  but  few  exceptions  no  appeal 
is  ever  made  to  the  courts,  except  to  settle  disputed  property 
rights. 

The  question  when  a  decedent  can  properly  be  said  to  be 
a  testator  has  been  discussed  in  the  preceding  chapters.  This 
implies  that  he  is,  at  the  time  of  making  the  will,  of  full  age, 
of  sound  mind  and  memory  and  under  no  restraint;  that  his 
will  was  executed  with  the  formalities  prescribed  by  law; 
that  it  was  not  subsequently  revoked,  and  that  it  has  been 
properly  admitted  to  probate.  The  instrument  thus  established 
as  the  last  will  and  testament  of  the  decedent  is  recognized  by 
the  law  as  a  guide  to  the  disposition  of  testator's  estate  in  deter- 
mining to  whom  testator's   property  is  to  pass. 

The  question  which  is,  under  these  circumstances,  presented 
for  judicial  decision  is,  What  does  the  will  mean  ?  This  topic  is 
generally  comprehended  under  the  name  of  "C^onstruction." 


r.QQ 
LAW    OF    WILLS. 

§457.     Definition. 

Constri^ction  in  the  law  of  wills  is  the  ascertaining  and  de- 
terminincr  of  testator's  intention  as  expressed  in  his  will,  and  its 
application  tc  existing  facts  and  circumstances  with  which  such 
intention  deals.^ 

§458.     Discussion  of  distinctions  and  classifications  of  construe- 
tion. 

In  the  most  technical^  uccurate  use  of  language  Construction 
should  probably  be  distinguished  from  Definition  on  the  one 
hand  and  Interpretation  on  the  other. 

Definition  refers  solely  to  determining  the  meaning  of  a  word 
or  phrase  used  in  the  will,  either  taken  by  itself  in  its  prmary 
meaning,  or  as  modified  and  affected  by  the  context  and  sur- 
rounding circumstances. 

Interpretation  is  defined  by  one  of  our  most  profound  writers 
as  the  ascertaining  ''of  the  true  sense  of  the  special  form  of 

words  used."^ 

Construction  is  "the  drawing  of  conclusions  respecting  sub- 
jects which  lie  beyond  the  direct  expression  of  the  text— con- 
clusions which  are  within  the  spirit  but  not  the  letter  of  the 

text."^ 

These  distinctions  have  been  suggested  by  the  highest  au- 
thorities on  the  philosophical  side  of  jurisprudence.  Acting 
upon  these  suggestions,  occasionally  writers  and  courts  have  at- 
tempted to  rewrite  the  Law  of  Construction  of  Wills  upon  this 
classification.  While  the  work  that  has  been  done  upon,  these 
bases  is  profound  and  philosophical,  the  fundamental  arrange- 
ment is  subject  to  at  least  two  serious  objections.  The  first  is 
that  the  attempt  to  treat  Construction  in  the  narrower  meaning 
of  the  term  as  distinct  from  Definition  and  Interpretation  re- 
sults in  either  confusion  or  repetition. 

No  clear  and  accurate  presentation  of  any  topic  under  the 

iPhayer    v.    Kennedy,     109     111.  =  Leiber    on    Political    Hermeneu- 

360;  Garth  v.  Garth,  139  Mo.  450;  ties. 

Hadley  v.    Hadley,    100   Tenn.   440;  3  Leiher    on    Political    Herraeneu- 

Pack  V.  Shanklin,  43  W.  Va.  304.  tics. 


534:  LAW     OF     WILLS. 

head  of  Construction  in  the  broad  and  general  sense  can  be  given 
without  a  careful  consideration  of  each  of  these  three  subdi- 
visions. It  is,  therefore,  necessary  either  to  repeat  what  has 
already  been  given  under  one  heading  after  each  of  the  other 
two,  or  to  treat  a  given  topic  in  detail  under  one  heading  and 
refer  back  and  forth  to  the  other  two  as  incidental  to  the  topic 
selected  as  the  main  one. 

A  second  serious  objection  to  this  arrangement  is  that  it  cuts 
sharply  across  the  distinctions  and  classifications  which  have  in 
the  past  in  actual  practice  been  observed  by  courts  in  deciding 
adjudicated  cases.  While  the  influence  of  philosophical  juris- 
prudence upon  the  current  of  judicial  decision  is  deservedly 
great,  the  mass  of  precedent  that  has  ali'eady  accumulated  upon 
the  subject  of  construction  is  so  enormous  that  it  is  impossible 
to  induce  the  courts  to  rearrange  and  reclassify  these  prece- 
dents upon  bases  which  were  not  present  in  the  minds  of  the 
judges  who  decided  these  cases. 

For  these  reasons,  after  careful  consideration,  it  has  been 
thought  best  to  present  the  law  on  Construction  on  the  bases  or 
classification  and  general  outlines  of  distinction  which  the  courts 
today  recognize  in  adjudicating  cases. 

§459.     Value  of  precedents. 

In  determining  testator's  intention  as  expressed  in  his  will, 
courts  are  often  asked  to  decide  the  case  in  dispute  in  the  same 
way  as  some  previous  case  in  which  somewhat  similar  expres- 
sions were  employed  in  the  will  there  construed.  In  most  cases 
courts  are  unwilling  to  construe  a  will  in  a  certain  manner 
merely  because  in  a  previous  case  they  have  construed  a  will 
containing  similar  expressions  in  the  same  manner. 

While  such  a  method  of  construction  is,  at  first  glance,  very 
tempting,  it  is  radically  at  variance  with  what  we  shall  see  is  the 
fundamental  rule  of  construction,  namely,  that  the  intention  of 
the  testator  is  to  be  ascertained,  and  is  to  be  ascertained  from 
the  language  used  in  the  entire  will.  An  attempt,  therefore, 
to  construe  the  separate  phrases  and  clauses  of  the  will  in  ac- 
cordance with  precedents  is  likely  to  lead  at  once  to  a  total  dis- 


LAW     OF    WILLS.  '^'^^ 


regard  of  testator's  intention,  unless  it  happens  that  in  the  two 
wills  taken  each  as  a  whole  testator's  intention  is  snhstantially 
the  same,  and  to  be  carried  out  in  the  same  way.  Such  a  co- 
incidence rarely  happens  except  in  the  introductory  clause  and 
attestation  clause  of  a  will. 

Wills  are  almost  never  drawn  in  any  set  form.  In  this  re- 
spect they  are  strikingly  different  from  instruments  like  deeds, 
leases,  mortgages  and  certain  types  of  business  contracts,  like 
insurance  policies,  bills  of  lading,  etc.  Instruments  of  each  of 
these  different  classes  are  dra^vn  each  substantially  alike.  A 
precedent  for  construing  a  phrase  in  a  deed,  therefore,  is  likely 
to  be  a  most  valuable  precedent  for  construing  the  same  phrase 
in  another  deed,  since  the  effective  parts  of  the  two  instruments 
are  likely  to  l>e  almost  identical. 

On  the  other  hand,  the  construction  of  a  phrase  in  a  will  is 
likely  to  give  but  little  help  in  construing  a  similar  phrase  in 
another  will,  since  the  remaining  effective  parts  of  the  two  in- 
struments are  likely  to  be  widely  dissimilar.  While  precedents 
are  of  great  weight  in  aiding  construction,  they  have  not  the 
controlling  force  that  they  have  in  most  branches  of  law. 

These  views  have  been  expressed  with  substantial  unanimity 
by  the  courts  for  many  years.'^ 

*Thus    in    a    recent    Maine   case  of  universal   application   in  the   iu- 

of   Wentworth   v.   Fernald,    92   Me.  terpretation  of  wills  must  continue 

282,  the  court  said:  to  be,  as  it  has  been,  a  task,  if  not 

"As  is  usual  in  this  class  of  cases.  utterly  hopeless,  at  least  of  ex- 
many  respectable  authorities  have  traordinarily  difficulty.'  The  analo- 
been  cited  and  many  rules  of  con-  gies  afforded  by  precedents  are 
struction  invoked  by  the  learned  helpful  servants  but  dangerous 
counsel  in  support  of  their  respec-  masters.  The  same  clause  or 
tive  contentions.  '  With  reference  to  phrase  may  appear  to  demand 
this  perplexing  branch  of  the  law,  the  same  construction  m  the 
Jud<re  Story  made  the  following  ob-  principal  case  as  in  the  one  cited, 
serv^ation  a  half-century  ago  in  but  a  more  discriminating  m- 
Sisson  V.  Seabury,  1  Summ.  235:  spection  may  disclose  an  important 
'The  eases  almost  overwhelm  us  at  ditTerence  in  the  leading  purpose  of 
every  step  of  our  progress,  and  any  the  testator  or  in  the  modifying 
attempt  even  to  classify  them,  much  effect  of  another  clause,  and  thus 
less  to  harmonize  them,  is  full  of  the  force  of  the  precedent  be  effec- 
the  most  perilous  labor.  To  lay  tually  destroyed.  To  a  very  great 
doAvn  any  positive  and  definite  rules  extent  the   decisions  necessarily  re- 


536 


LAW     01<'     WILLS. 


In  certain  classes  of  cases,  however,  precedents  are  followed 
almost  as  rigidly  in  what  is  called  construction  as  it  is  in 
almost  any  other  branch  of  the  law.  This  exception  exists 
where,  by  long  usage  and  judicial  recognition,  certain  words 
and  phrases  have  come  to  have  definite  and  recognized  meanings 
so  firmly  established  that  their  meaning  really  ceases  to  be  a 
question  of  construction,  and  becomes  rather  a  rule  of  prop- 
erty. In  cases  like  this  the  courts  generally  continue  to  speak 
of  the  question  as  one  of  construction.  At  the  same  time  they 
make  it  clear  that  they  are  not  really  endeavoring  to  ascertain 
testator's  intention,  but  rather  to  establish  uniformity  in  the 
law  of  property  by  constantly  adhering  to  established  rules.^ 


solve  themselves  into  the  judgment 
of  the  court  upon  the  circumstances 
of  each  particular  case." 

A  similar  view  was  expressed  in 
Bomewhat  different  language  in 
Jones  \.  Hunt,  9G  Tenn.  369,  in 
which   the  court  said: 

"We  have  instituted  no  compari- 
son, in  this  opinion,  between  the 
language  of  the  will  under  consider- 
ation and  that  of  any  one  of  the 
wills  construed  in  our  numerous  ad- 
judged cases,  because  there  is  in 
no  instance  sufficient  similarity  to 
render  such  comparison  of  any  ad- 
vantage in  ascertaining  the  inten- 
tion of  the  present  testatrix." 

And  in  the  recent  English  Case, 
In  re  Morgan  (1893),  3  Ch.  222, 
quoted  subsequently  in  the  case  In 
re  Bawden  (1894),  1  Ch.  693,  lays 
especial  stress  upon  the  danger  of 
overlooking  precedents  blindly,  in 
this  language: 

"Many  years  ago  the  court  slid 
into  the  bad  habit  of  deciding  one 
will  by  previous  decisions  upon  other 
wills.  Of  course  there  are  princi- 
ples of  law  which  are  to  be  applied 
to  all  wills;  but  if  you  once  get  a 
man's  intention  and  there  is  no  law 


to  prevent  you  from  giving  it  ef- 
fect, effect  ought  to  be  given  to  it." 

In  Thurber  v.  Battey,  105  Mich. 
718,  it  was  said  that  cases  are  of 
little  value  as  precedents  "unless 
they  substantially  agree  in  their 
facts  with  the  case  under  consid- 
eration— a  circumstance  of  rare  oc- 
currence." 

Similar  views  are  expressed  in 
Grey  v.  Pearson,  6  H.  L.  C.  61  ; 
Littig  V.  Hance,  81  Md.  416;  Wil- 
liams V.  Veach,  17  Ohio,  171;  Brash- 
er V.  :Marsh,  15  O.  S.   103. 

5  "Many  of  the  rules  which  courts 
have  adopted  as  guides  in  ascertain- 
ing the  intention  of  testators,  as- 
sume an  intention  from  words  and 
phrases  where  often  it  is  very  doubt- 
ful whether  they  were  used  with  any 
intelligent  appreciation  of  the  le- 
gal meaning  given  them.  But  these 
rules  have  become  in  many  cases 
rules  of  property,  and  work  out  per- 
haps in  the  majority  of  cases  as 
nearly  just  as  may  be.  It  is  bet- 
ter to  adhere  to  them  in  their  in- 
tegrity than  to  permit  exceptions 
upon  slight  grounds."  Lamb  v. 
Lamb,   131   N.  Y.   227. 


LAW    OF    WILLS.  537 

§460.     Intention  to  be  deduced  from  words  employed  by  testator. 

As  the  courts  are  careful  to  discover  and  enforce  testator's 
intention,  but  not  to  make  a  new  will  for  testator,  it  follows 
that  they  constantly  refuse  to  ascertain  testator's  intention  ex- 
cept from  the  words  which  he  used  in  his  will,  together  with 
such  extrinsic  evidence  as  is  admissible.  The  question  always 
before  the  mind  of  the  court  is  not  what  should  testator  have 
meant  to  do  or  what  words  did  he  mean  to  use,  but  what  did 
he  mean  by  words  which  he  has  actually  used.^ 

§461.     Importance  of  ascertaining  testator's  intention. 

The  sole  object  and  intention  of  the  rules  upon  the  subject 
of  construction  is  to  ascertain  the  intention  of  the  testator.  As 
was  said  by  Chief  Justice  Marshall:  "The  intent  of  the  testator 
is  the  cardinal  rule  in  the  construction  of  wills,  and,  if  that  in- 
tent can  be  clearly  conceived,  and  is  not  contrary  to  some  pos- 
itive rule  of  law,  it  must  prevail."  "^ 

The  purpose  of  the  court  in  construing  a  will  is  solely  to 
ascertain  the  intention  of  the  testator  as  the  same  appears 
from  a  fiill  and  complete  consideration  of  the  entire  will.^ 

The  intention  of  testator  is  said,  in  a  recent  Virginia  case, 
to  be  the  "life  and  soul  of  a  will,"  and  if  this  intention  is 
clear,  and  is  not  in  violation  of  any  rule  of  law,  it  must 
govern  with  absolute  sway.^ 

In  construing  a  will  the  court  has  no  intention  to  make  a 
will  for  the  testator  or  to  attempt  to  improve  upon  the  will 

6  Sturgis  V.  Work,   122  Ind.   134;  meaning    what    they     say    it    does 

Eckford  v.  Eckford,  91  lo.  54 ;  Pack  mean."      In   re   Bawden    (1894),    1 

V.  Shanklin,  43  W.  Va.  304.     "The  Ch.  693. 

intention    of   testator    is   always   to  7  Finlay  v.  King,  3  Pet.    (U.  S.), 
be    deduced    from     words     actually  346,    quoted    in    Whitcomb   v.   Rod- 
written   in   the   will."        Sturgis   v.  man,    156   111.    116. 
Work,  122  Ind.   134.  8  Phayer  v.  Kennedy,  169  111.  360; 

"The  language  which  he  has  used  Allen    v.    White,     97     Mass.     504; 

has  been  interpreted  by  judicial  de-  Stevenson  v.   Evans,   10   O.   S.   307 ; 

cisions,  and  the  testator  must  be  as-  Christy  v.  Christy,  162  Pa.  St.  485. 

sumed    to   have   used   the   language  9  McCamant  v.   Nuckolls,   85   Va, 

which    he    uses    with    reference    to  331. 
those      judicial     decisions     and     as 


538 


T.AW    OF    WILLS. 


which  testator  actually  made.  Assuming,  as  we  must  iu  the 
case  of  construction,  that  the  testator  had  testamentary  capac- 
ity at  the  time  of  making  the  will,  that  he  was  under  no  re- 
straint, and  the  will  as  made  is  in  full  compliance  with  the 
rules  of  law  on  the  subject,  the  sole  question  for  the  considera- 
tion of  a  court  of  construction  is  what  testator  meant  by  the 
provisions  of  the  will  which  he  has  seen  fit  to  make.  This 
proposition  has  been  put  by  the  courts  in  such  a  variety  of 
forms,  and  with  such  uniformity  of  view,  that  it  is  hackneyed. 
A  few  out  of  an  enormous  nimaber  of  cases  on  this  subject 
are  cited  in  the  note  below.^^ 


loColton    V.    Colton,    127    U.    S. 
309;    Thrasher   v.   Ingram,   32   Ala. 
645;    Finlay   v.   King,   3   Pet.    346; 
Doughten   v.   Vandever,   5    Del.    Ch. 
51;    Pritchard    v.    Walker,    22    111. 
App.   286;    Blanchard   v.   Chapman, 
22    111.    App.    341;     Re     Cashman's 
Estate,  28  111.  App.  346,  affirmed  in 
24  N.  E.  963;   Crerar  v.  Williams, 
145     111.     625,     affirming     44     111 
App.    497 ;     Whitcomb   v.    Rodman 
156     111.    116;     28     L.    R.    A.    149 
Davenport     v.     Kirkland,     156     111 
169;    Phayer   v.    Kennedy,    169    111 
360;    Gaffield   v.   Plumber,    175    111 
521;    Sheets  v.  Wetsel,  39  111.  App 
600;  Moran  v.  Moran,  104  lo.  216 
39      L.      R.     A.     204;      Brown     v 
Brown,  1  Dana   (Ky.),  39;  New  Or 
leans  v.  Hardie,  43  La.  Ann.  251 
Wentworth     v.     Fernald,     92     Me, 
282;    Elder   v.   Elder,   50   Me.   535 
Reilly     v.     Union     Protestant     In 
firmary,    87    Md.    664;    Holmes     v 
Mitchell,    4    Md.    Ch.    162:    Smith 
V.   Donnell,  '9   Gill.   84 ;    Stewart  v. 
Pattison,  8   Gill.   46;    Eliot  v.   Car- 
ter, 12  Pick.    (Mass.),  435;   Dowey 
V.    Morgan,     18    Pick.    295;     Saw- 
yer    V.     Baldwin.     20     Pick.    378; 
Garth  v.  Garth,  139  Mo.  456;  Ford 


V.  Ford,  80  Mich.  42;  44  N.  W. 
1057;  Eyer  v.  Beck,  70  Mich.  179; 
Hibler  v.  Hibler,  104  Mich.  274; 
Thurber  v.  Battey,  105  Mich.  718; 
Sorsby  v.  Vance,  36  Miss.  564 ;  Wet- 
more  V.  St.  Luke's  Hospital,  9  N. 
Y.  S.  753;  Hall  v.  Chaffee,  14  N. 
H.  215;  Cody  v.  Bunn,  46  N.  J. 
Eq.  (1  Dick),  131;  Sims  v.  Sims, 
10  N.  J.  Eq.  158;  Brearley  v.  Brear- 
ley,  9  N.  J.  Eq.  21 ;  Decker  v.  Deck- 
er, 3  Ohio,  157 ;  Brasher  v.  Marsh, 
15  0.  S.  103;  Townsend  v.  Town- 
send,  25  O.  S.  477 ;  Linton  v.  Lay- 
cock,  33  0.  S.  128 ;  Shadden  v.  Hem- 
bree,  17  Or,  14;  Jasper  v.  Jasper, 
17  Or.  590;  Christy  v.  Chris- 
ty, 162  Pa.  St.  485;  BelshooA'er  v. 
Brandt,  18  Pa.  St.  473:  Re  Knauss' 
Estate,  9  Pa.  Co.  Ct.  621 ;  Guery  v. 
Vernon,  1  Xott.  &  Mc.  C.  69;  Hey- 
ward  V.  Brailsford,  2  Bay,  255 ;  El- 
lis V.  Woods,  9  Rich.  Eq.  19;  Had- 
ley  V.  Hadley,  100  Tenn.  446;  Ev- 
ans V.  Opperman,  76  Tex.  293 :  Phil- 
leo  V.  Holliday,  24  Tex.  38:  McCa- 
mant  v.  Nuckolls,  85  Va.  331 ;  Re- 
no V.  Davis,  4  Hen.  &  M.  (Va.), 
283:  Wooton  v.  Redd,  12  Gratt. 
196;  Cresap  v.  Cresap,  34  W.  Va. 
310. 


LAW    OF    WILLS.  ^^^ 

When  testator's  intention  is  clear,  every  rule  of  construc- 
tion yields  to  such  intention.^  ^ 

As  was  said  in  a  recent  Maine  case:  "There  is,  however, 
one  fundamental  rule  or  consideration  which  is  paramount  to 
all  others  and  which  should  never  be  overlooked,  and  that  is 
that  the  intention  of  the  testator,  as  declared  by  the  will 
itself,  shall  be  allowed  to  prevail,  unless  some  principle  of 
sound  policy  is  thereby  violated."  ^^ 

§462.     Intention  to  be  deduced  from  whole  will. 

The  intention  of  the  testator,  which,  as  we  have  seen,  the 
courts  endeavor  to  ascertain  and  enforce,  except  where  for- 
bidden by  positive  rules  of  law,  is  to  be  ascertained  from  a 
consideration  of  the  will  of  testator  as  a  whole,  and  not  from 
its   disjointed   fragments.       The    courts    will    approach    the 
proble^n  of  construing  a  will  with  a  prima  facie  assumption 
that  the  testator,   in  drawing  and  executing  his  will,  had  a 
purpose  which  was  clear,  definite  and  thoroughly  consistent. 
As  was  said  in  a  recent  case  already  quoted  from :     "This  in- 
tention must  be  collected  from  the  language  of  the  whole  will, 
interpreted  with  reference  to  the  obvious  or  manifest  object 
of  the  testator;  and  all  parts  of  the  instrument  must  be  con- 
strued in  relation  to  each  other  so  as  to  give  meaning  and 
effect  to  every  clause  and  phrase,  and,  if  possible,  form  one 
consistent  whole,   every  word   receiving   its   natural   and   ap- 
propriate meaning.^^     This  proposition,  like  the  preceding  one, 
is  established  by  an  enormous  number  of  cases,  a  few  of  which 
are  cited  in  the  note  below.^* 

11  Ccx   V.   Handy,    78     Md.     108 ;  when  it  is  doubtful,  but  are  never 

Brasher   v.   Marsh,    15   O.    S.    103;  to   be   applied   so   as   to  defeat  his 

Wentworth  v.  Fernald,  92  Me.  282;  intention  when  it  is  clear." 
Still  V.  Spear,  45  Pa.  St.  168.  12  Wentworth  v.  Fernald,  92  Me. 

Thus   the   court   spoke   in   Cox  v.  282. 
Handy,    78    Md.    108     (petition    for  1 3  Wentworth  v.  Fernald,  92  Me. 

rehearing    78    Md.    126),    of    "gen-  282. 

eral  rules  of  construction  which  are  "  Healy  v.  Healy,  70  Conn.  467 

frequently    of    great    use    in    ascer-  Bivins     v.    Crawford,    26    Ga.    225 

taining   the   meaning   of   a   testator  Coleman    v.    Camp,    36    Ala.    159 


540 


LAW     OF     WILLS. 


Thus,  as  a  particular  application  of  this  general  principle, 
if  two  constructions  are  possible  to  a  clause  of  a  will,  one  of 
which  is  in  harmony  with  the  provisions  of  the  remainder  of 
the  will,  and  the  other  of  which  is  at  variance  with  them,  the 
court  will  assume  that  the  correct  construction  is  the  one  which 
will  harmonize  this  clause  with  the  rest  of  the  will.^^ 

A  further  application  of  this  principle  is  presented  in  the 
familiar  rule  elsewhere  discussed,^  ^  that  where  a  codicil  is 
appended  to  a  will  and  does  not  contain  any  clause  of  revoca- 
tion, the  provisions  of  the  will  are  to  be  disturbed  only  as  far 
as  'are  absolutely  necessary  to  give  effect  to  the  provisions  of 
the  codicil ;  and  in  other  respects  such  a  will  and  codicil  are 
to  be  construed  together/'^  Thus,  where  the  will  is  ambiguous, 
as  to  whether  a  life  estate  or  a  fee  were  granted,  a  provision 


Strong  V.  Cumnun,  2  Burr.  767; 
Davenport  v.  Kirkland,  156  111. 
169;  Pritchard  v.  Walker,  22  111. 
App.  286;  Cashman's  Estate,  28  111. 
App.  346,  affirmed  in  24  N.  E.  963; 
Young  V.  Harkleroad,  166  111.  318; 
Baker  v.  Riley,  16  Ind.  479;  Kil- 
gore  V.  Kilgore,  127  Ind.  276;  Jack- 
son V.  Hoover,  26  Ind.  511;  Sturgis 
V.  Work,  122  Ind.  134;  Wing  v.  Mix, 
17  Ind.  344;  limas  v.  Neidt,  101  lo. 
348;  Lebeau  v.  Trudeau,  10  La. 
Ann.  164;  Orr  v.  Moses,  52  Me. 
287;  Quincy  v.  Attorney  General, 
160  Mass.  431;  Cook  v.  Holmes, 
11  Mass.  528;  Rogers  v.  Rogers,  49 
N.  J.  Eq.  98;  Pennington  v.  Van 
Houten,  8  N.  J.  Eq.  272;  Turner 
V.  Patterson,  5  Dana  (Ky.),  292; 
Mitchener  v.  Atkinson,  63  N.  Car. 
585;  Decker  v.  Decker,  3  Ohio,  157; 
Edwards  v.  Ranier,  17  O.  S.  -597; 
Carter  v.  Reddish,  32  O.  S.  1 ;  Brash- 
er V.  Marsh,  15  O.  S.  103;  Hard 
V.  Ashley.  117  N.  Y.  606;  Starling 
V.  Price,  16  O.  S.  29;  Mutter's  Es- 
tate. 38  Pa.  St.  314 ;  Grove's  Estate, 
58   Pa.   St.  429;    Shreiner's  Appeal, 


53  Pa.  St.  106;  Rivers  v.  Rivers, 
36  S.  C.  302;  15  S.  E.  137;  Hadley 
v.  Hadley,  100  Tenn.  446;  Cheshire 
V.    Purcell,    11    Gratt.     (Va.),    771. 

15  Roe  V.  Vingut,  117  N.  Y.  204; 
Ernst  V.  Foster,  —  Kan.  — ;  49 
Pac.  527;  Hopkins  v.  Grimes,  14 
lo.  73;  Smithers  v.  Jackson,  23 
Md.  273;  Prosser  v.  Hardesty,  101 
Mo.  593;  Coakley  v.  Daniel,  4 
Jones'  Eq.  89;  Brasher  v.  Marsh, 
15  O.  S.  103. 

16  See  Sec.  269. 

17  Morley  v.  Rennoldson   (C.  A.), 
(1895),  1  Ch.  449;  64  L.  J.  Ch.  (N. 

S.),  485;  Pellizzaro  v.  Reppert,  83 
lo.  497 ;  Bedford  v.  Bedford,  —  Ky. 
— ;  35  S.  W.  926;  Thomas  v. 
Levering,  73  Md.  451 ;  Richardson 
V.  Willis,  163  Mass.  130:  Gray  v. 
Sherman,  5  All.  198;  Robeson  v. 
Shotwell,  55  N.  J.  Eq.  318;  Hard 
v.  Ashley,  117  N.  Y.  606;  Starling 
V.  Price,  16  O.  S.  29:  Collier  v.  Col- 
lier, 3  O.  S.  369;  Negley  v.  Card. 
20  Ohio,  310;  Ward  v.  Saunders,  2 
Swan   (Tenn.),  174. 


LAW     OF  '  WILLS.  541 

in  the  codicil,  that  the  devisee  should  have  power  to  dispose 
of  a  certain  part  of  such  property  by  will,  shows  that  testator 
did  not  intend  to  give  this  power  by  the  will;^^  while  a  pro- 
vision in  the  codicil  expressly  restricting  the  estate  in  part 
of  the  property  to  a  life  interest  shows  that  testator  intended 
a  fee  to  pass  by  will.^^ 

So  a  provision  in  a  will  providing  for  proportional  division 
among  the  beneficiaries  of  either  excess  or  deficiency,  and  a 
provision  in  a  codicil  giving  a  certain  amount  to  certain  omitted 
grandchildren,  are  to  be  construed  together  as  one  instrument."'' 

§463.     General  and  particular  intent. 

We  have  seen  that,  if  possible,  the  will  of  testator  is  to  bo 
construed  as  an  entirety,  and  that  all  provisions  therein  are 
to  be  rendered  consistent  with  each  other. 

It  not  infrequently  happens,  however,  that  the  general 
intent  of  testator,  as  deduced  from  the  consideration  of  the 
will  as  a  whole,  is  at  variance  with  a  particular  direction  of 
some  clause.  This  conflict  of  intention  usually  arises  where 
the  testator  has  not  carefully  thought  out  the  application  of 
the  provisions  of  his  will  to  all  possible  states  of  fact,  and  has 
not,  therefore,  foreseen  the  actual  contingency  which  has  caused 
the  inconsistency.  In  such  a  case,  the  court,  while  avoiding 
making  a  will  for  a  man  who  did  not  succeed  in  making  one 
for  himself,  will,  nevertheless,  if  the  general  intention  of  the 
testator  is  clear,  give  effect  to  such  intention,  disregarding  the 
particular  intent  of  the  particular  clause.^^ 

18  Robeson  v.   Shotwell,  55  N.  J.  III.   290;    Butler  v.   Butler,  —  Ky. 

Eq.  318.  — ,    1895;     30   S.    W.   4;     Ernst   v. 

isPellizzaro    v.    Reppert,    83    la.  Foster,   —   Kan.   — ,   49    Pac.    527; 

497.  Boston  Safe  Deposit  &  Trust  Co.  v. 

zoNegley  V.  Gard,  20  Ohio,  310.  Coffin,     152     Mass.     95;     8     L.     R. 

21  Pinney    v.    Newton,     66    Conn.  A.    740 ;    Watson   v.    Blackwood,    50 

141 ;  Alsop  V.  Russell,  38  Conn.  99 ;  Miss.  15 ;   Baldwin  v.  Taylor,  37  N. 

Goodrich  v.  Lambert,  10  Conn.  448 ;  J.  Eq.  78;  Roe  v.  Vingut,  117  N.  Y. 

Warner  v.  Williard,  54  Conn.  470  ;  204  ;   Crozier  v.  Bray,  120  N.  Y.  366 ; 

Chase  v.   Lockerman,   11   Gill   &  J.  Jasper  v.  Jasper,  17  Or.  590;  Shrei- 

(Md.),  185;  Huffman  V.  Young,  170  ner's     Appeal,     53     Pa.     St.     106; 


642 


X^AW     OF     WILLS. 


"An  obvious  general  intent  to  be  gathered  from  the  whole 
will  is  rarely  to  be  defeated  by  an  inaccuracy  or  inconsistency 
in  the  expresson  of  a  particular  intent."^^ 


§464.     Unjust  or  absurd  intention. 

Since  the  courts  give  effect  to  the  intention  as  expressed 
in  a  will,  if  not  in  conflict  Avith  any  positive  rule  of  law,  it 
follows  that  where  the  intention  of  testator  to  make  an  unjust, 
unfair  or  absurd  disposition  of  his  property  is  clear,  then  the 
court  has  no  choice  but  to  give  effect  to  such  disposition  of 


Urich's  Appeal,  86  Pa.  St.  386; 
Marshall's  Appeal,  138  Pa.  State, 
260,  285;  21  Atl.  75;  McMurry  v. 
Stanley,  69  Tex.  227;  Hurt  v. 
Brooks,  89  Va.  496;  16  S.  E.  358; 
Price  V.  Cole,  83  Va.  343 ;  Houser  v. 
Ruffner,   18  W.  Va.  244. 

22  Pinney  v.  Newton,  66  Conn. 
141. 

Thus  in  a  recent  Massachusetts 
case  a  testator  had  executed  a  will, 
the  general  purpose  of  which  was, 
evidently,  a  division  of  his  proper- 
ty after  making  deduction  for  ad- 
vances equally  among  the  different 
branches  of  his  family.  A  particu- 
lar clause  apparently  inconsistent 
with  this  general  intent  was  dis- 
posed of  by  the  court  in  the  fol- 
lowing language: 

"The  literal  meaning  of  the  words 
is  that  when  a  child  of  the  testator 
shall  die  leaving  children,  the  lat- 
ter shall  receive  the  principal  sum 
of  which  their  parent  had  received 
the  income,  and  thereupon  their  in- 
terest in  the  joint  fund  shall  cease, 
although  the  result  of  such  cessa- 
tion is  that  they  may  happen  to 
lose  the  secondary  and  accidental 
advantage  of  sharing  in  the  division 
of  some  other  child's  share,  if  an- 
other child  of  testator  should  chance 


to  die  later  and  leave  no  children 
of  his  own.  In  re  Homer's  Estate, 
19  Ch.  D.  186;  In  re  Benn,  29  Ch. 
839.  On  the  other  hand  there  is 
the  same  unlikelihood  that  the  tes- 
tator intended  an  aleatory  gift  which 
has  led  to  the  construction  against 
joint  legacies.  Probably  the  testa- 
tor did  not  have  it  in  mind  to  de- 
prive any  set  of  grandchildren  of 
this  secondary  advantage  because  of 
the  previous  death  of  their  parent. 
If  that  is  the  result  of  the  words 
used,  it  is  an  accidental  result,  not 
the  object  of  his  disposition." 

Balch  V.  Pickering,  154  Mass. 
363;  14  L.  R.  A.  125  (a  different 
view  of  what  testator's  predomi- 
nant intent  was,  upon  similar  facts, 
was  taken  in  Sternmetz's  Estate, 
194  Pa.  St.  611).  So  in  South 
Mahoning  Township  v.  Marshall, 
138  Pa.  St.  570,  the  court  said: 

"This  case  belongs  to  that  very 
difficult  class  in  which  a  situation 
has  arisen  never  contemplated  by 
the  testator  and  which  renders  the 
execution  of  all  his  directions  im- 
possible. We  are  obliged,  there- 
fore, to  separate  them  and  preserve 
the  principal  intent  even  at  the  sac- 
rifice  of   the   subordinate." 


543 

LAW    OF    WILLS. 


his  property,  howerer  unfair  the  injustice  of  sneh  will  may 
U„pLs'  the  members  of  the  court  in  their  private  capacity 

Thus  in  a  recent  Illinois  case,  testator  in  his  will  provided 
that  whatever  part  of  his  estate  his  executor  named  in  the 
will  should  take,  or  should  claim  as  due  to  him  from  the  testa- 
tor should  be  considered  as  due  him  without  proof  of  any  kind. 
The  will  beins  valid  and  the  testator's  intention  being  unmis- 
takable, it  w;s  held  that  no  one  claiming  under  testator, 
under  the  will  or  by  descent,  could  assert  an  antagonistic 
claim  to  executor,  no  matter  what  advantage  the  executor 
might  take  of  siicli  provision. 

§465.  Testamentary  intention  presumed  to  be  in  accordance 
with  law. 
It  will  ordinarily  he  presumed  in  construing  a  will  that 
the  testator  is  acquainted  with  the  rules  of  law,  and  that  he 
intended  to  comply  with  them  accordingly.  If  two  construc- 
tions of  a  will  or  a  part  thereof  are  possible,  and  one  of  these 
constructions  is  consistent  with  the  law,  and  the  other  is  in- 
consistent, the  presumption  that  the  testator  intended  to  com- 
ply with  the  law  will  compel  that  construction  which  is  con- 
sistent with  the  law  to  he  adopted.^^ 

Testator  will  be  presumed  to  know  the  limits  imposed 
by  law  upon  his  testamentary  power,  and  to  strive  to  comply 
with  those  limits.  Thus,  if  one  construction  of  the  will  will 
cause  it  to  violate  the  rale  a-ainst  perpetuities,  and  another 
construction  will  make  it  comply  with  this  rule,  the  construc- 
tion which  makes  it  comply  with  this  rule  will  be  preferred. 

23Maurer    v.    Bowman,    169    111.      47  N.  J.  Eq.  540 ;  Griggs  v   Veghte, 

586,    affirming    65    111.    App.    261;       47  N.  J.  Eq.  179 ;  19  Atl  867  ;  James 

Ma  shall   V.   ladley,    50   N.   J.   Eq.      v.  Pruden,  14  O.  S.  251;  McBnde  s 

547;  25  Atl.  325;   Salter  v.  Ely,  56      Estate,  152  Pa.  St.  192;  Ar-t™ng 

N    J    Eq.  357;  Moore  v.  Powell,  95      v.  Douglass,  89  Tenn.  219;   10  L.  K. 

y^    ^58  A.    85;    Roe   v.   Vingiit,    117    N.   \. 

24  Maurer  v.  Bowman,  169  111.  586,      204 ;   Moore  v.  Powell,   95  Va.  258. 

affirming  65  111.  App.  261.  ^«  Tngraham  v   Ingraham,  169  II  . 

2.  Quincy  v.  Attorney  General,  160       432  ;    169   111.   472 ;    Roe  v    Vingut. 

Mass.    431;    Thompson    v.    Newlin,       117    N.   Y.   204;    McBrxde's   Estate, 

8  Ired.  Eq.  32 :  Crozier  v.  Bray,  120       152  Pa.  St.  192 ;  Armstrong  v  Doug- 

N      Y     366;     Bonnell     v.    Bonnell,       lass,  89  Tenn.  219  ;  10  L.  R.  A.  85. 


544  LAW     OF     WILLS. 

Where  a  will  may  be  so  construed  as  to  operate  upon  the 
property  belonging  to  testator,  as  well  as  to  operate  u}>on  the 
property  which  did  not  belong  to  him,  and  over  which  he  had 
no  control,  the  will  will  be  so  construed  as  to  apply  to  testator's 
property  only.^'^ 

Under  this  doctrine  the  testator  is  also  presumed  to  know 
the  rules  of  law  which  control  the  constructon  of  his  will. 
The  ordinary  rules  of  construction  will,  therefore,  be  applied, 
unless  it  clearly  appears  from  the  will  itself  that  the  testator 
had  a  different  intention  from  that  which  is  presumed  by  the 
ordinary  rules  of  construction.^^ 

§466.     Presumption  against  partial  intestacy. 

Under  ordinary  circumstances  a  man  makes  a  will  to  dispose 
of  his  entire  estate,  or,  at  least,  of  his  estate  as  it  exists  at 
the  time  he  makes  his  wilL  If,  therefore,  a  will  is  susceptible 
of  two  constructions,  by  one  of  which  testator  disposes  of  the 
whole  of  his  estate,  and  by  the  other  of  which  he  disposes 
of  a  part  of  his  estate  only,  and  dies  intestate  as  to  the  re- 
mainder, the  courts  will  prefer  the  construction  by  which  the 
whole  of  testator's  estate  is  disposed  of,  if  this  construction  is 
reasonable  and  consistent  with  the  general  scope  and  provi- 
sions of  the  will.-^ 

Th'e  court  is  very  keen  sighted  to  Loper,  147  111.  41,  affirming  49  111. 

discover   a   construction   which   will  App.    53;    Boston    Safe    Deposit    & 

not  violate  this  rule.     Ingraham  v.  Trust   Co.  v.   Coffin,   152  Mass.   95; 

Ingraham,    169    111.    432;     169    111.  25     N.     E.     30;     8    L.    R.   A.    740; 

472.  Johnson   v.    Brasington,    156   N.    Y. 

27  Moore  v.  Powell,  95  Va.  285.  181;    rev.   86   Hun,    106;    Collier   v. 

28Bonnell    v.    Bonnell,    47    N.    J.  Collier,  3  O.  S.  369;  Gilpin  v.  Will- 

Eq.  540;  Griggs  v.  Veghte,  47  N.  J.  iams,   17   0.   S.  396;   Davis  v.  Cor- 

Eq.  179;  19  Atl.  867.  wine,  25  O.   S.   668;   Dull's  Estate, 

29  Leake  v.  Robinson,  2  Mer.  203;  137  Pa.  St.  112;   Cox's  Estate,   180 

Lett  V.  Randall,  10  Sim.  112;   also  Pa.  St.  139;  Oldham  v.  York   (Tenn. 

16  Eng.  Chancery  Rep'ts,  112;  Pin-  Syp.),  41    S.   W,   333;    Deadrick  v. 

ney  v.  Newton,  66  Conn.  141;  Scho-  Armour    (Tenn.),    10   Humph.   588; 

field  V.  Ocott,  120  111.  362 ;  Tauben-  Gourley    v.     Tliompson,      2      Sneed 

han  V.  Dunz,  20  111.  App.  262,  aff'd  (Tenn.),  387;   Jarnagin  v.  Conway 

in  125  111.   524;   Whitcomb  v.  Rod-  (Tenn.),   2   Humph.   50;    Saxton  v. 

man,  156  111.  116;  28  L.  R.  A.  149:  Webber,  83  Wis.  617;  20  L.  R.  A. 

Winkler    v.    Simons,    172    111.    323,  509;    Carney   v.    Kain,    40    W.    Va. 

rev'g  71  IIL  App.  422;   Hayward  v.  758. 


LAW     OF     WILLS. 


545 


"It  will  be  presumed  that  a  person  when  he  makes  and 
publishes  a  will  intends  to  dispose  of  his  whole  estate,  unless 
the  presunjption  is  rebutted  by  its  provisions  or  evidence  to 
the  contrary."^" 

Where  testator  provided  that  if  his  son  survives  his 
wife,  the  whole  net  income  should  go  to  his  son,  while  ^'in 
case  my  son  should  die  leaving  my  wife  surviving,  then  during 
the  life  of  my  said  wife,  the  widow  of  my  son  is  to  receive  one- 
third  of  my  son's  share  of  said  income  and  the  issue  of  my  son 
two-thirds,  and  upon  the  decease  of  my  wife,  then  thp  widow 
of  my  said  son  is  to  receive  one-third  of  the  principal  of  the 
trust  fund,  and  the  issue  two-thirds,"  it  was  held  that  testator 
did  not  die  intestate  where  his  wife  survived  him,  but  died 
before  the  son,  and  the  son  then  died ;  but  that  the  fund  passed 
to  the  widow  and  children  of  such  son.^^ 

But  where  testator  has  not  disposed  of  his  property  by 
will,  the  courts  can  not,  under  guise  of  construction,  make  a 
new  or  corrected  will  for  him  to  pass  such  property.^^ 


30  Whitcomb  v.  Eodman,  156  111. 
110;  28  L.  R.  A.  149,  citing  Higgins 
V.  Dwen,  100  111.  554 ;  so  Woman's 
Union  Missionary  Society  v.  Mead, 
131  111.  338;  Kennard  v.  Kennard, 
63  N.  H.  303 ;  Hoitt  v.  Hoitt,  63  N. 
H.  475;  56  Am.  Rep.  530;  Weath- 
erhead  v.  Stoddard,  58  Vt.  623. 

31  Cox's  Estate,  180  Pa.  St.  139. 

32  "It  is  true  that  courts  have 
always  leaned  to  constructions 
which  will  avoid  intestacy,  and  their 
swift  willingness  in  this  regard  has 
passed  into  a  rule  of  construction, 
but  there  are  well-defined  limits,  be- 
yond w  hich  the  courts  have  not  gone, 
and  beyond  which  they  could  not  go 
without  subverting  all  rules  and 
leaving  the  interpretation  of  every 
will  to  the  mere  cajjrice  and  whim 
of  the  chancellor.  One  of  these 
rules,  firmly  established  and  never 
departed  from  or  even  criticised,  is 
that  the  expressed  intent  will  not 
be   varied   under   the   guise   of   cor- 


rection, because  the  testator  mis- 
apprehended its  legal  effect.  The 
testator  is  presumed  to  know  the 
law.  If  the  legal  effect  of  his  ex- 
pressed intent  is  intestacy,  it  will 
be  presumed  that  he  designed  that 
intent.  The  inquiry  will  not  go  to 
the  secret  workings  of  the  mind  of 
the  testator.  It  is  not,  what  did 
he  mean?  but  it  is,  what  do  his 
words  mean?  In  Bingel  v.  Volz, 
142  111.  214;  34  Am.  St.  Rep.  64. 
it  is  well  said:  "The  purpose  of 
consti'uction  as  applied  to  wills  is 
unquestionably  to  arrive  if  possible 
at  the  intention  of  the  testator, 
but  the  intention  to  be  sought  for 
is  not  that  which  existed  in  the  mind 
of  the  testator,  but  that  which  is 
expressed  in  the  language  of  the 
will."  Estate  of  Young,  123  Cal. 
337,  citing  and  following  Abercrom- 
bie  V.  Abercrombie,  27  Ala.  489; 
Arthur  v.  Arthur,  10  Barb.  9 ;  Cald- 
well V.  Caldwell,  7  Bush.  515;  Stur- 


546 


LAW     OF     WILLS. 


Where  testator  attempts  to  dispose  of  his  property  bj  a  gift 
which  is  void  at  law,  and  there  is  no  residuary  clause,  such 
property  descends  as  intestate.^^ 

Income  to  be  accumulated  in  excess  of  the  period  allowed 
by  statute  descends  as  intestate  property,  where  the  gift  of 
the  accumulated  fund  is  contingent,  and  the  beneficiaries  can 
not  be  ascertained  until  the  end  of  the  accumulation  period. •"^'^ 

So  where  the  persons  to  whom  certain  stock  is  bequeathed 
can  not  be  ascertained,  the  dividends  are  intestate  property.^^ 

But  where  the  legacy  was  lawful  on  its  face,  and  failed  only 
because  the  evidence  showed  it  was  held  on  an  unlawful  parol 
trust,  it  was  held  on  a  resulting  trust  for  testator's  heirs  and 
next  of  kin,  but  was  not  intestate  property.^^ 

So  where  the  residuary  clause  merely  attempts  to  pass  any 
property  "not  hereinbefore  disposed  of,"  a  void  devise  does 
not  pass  under  such  clause,  but  passes  as  intestate  property.'^" 

So,  in  the  absence  of  a  residuary  clause,  a  lapsed  devise  or 
legacy  descends  as  intestate  property,^^  unless  testator  has 
specifically  provided  for  its  disposition  in  case  of  such  lapse. 
Such  provision  of  testator  must,  of  course,  be  followed.^^ 

Where  testator  intends  to  make  a  disposition  of  his  prop- 
erty, but  fails  to  do  so  by  reason  of  an  ambiguity  in  the  dis- 
positive clauses,''^  or  where  testator,  in  providing  for  his  prop- 


gis    V.    Cargill,    1    Sand.    Ch.    318; 
Rosborough  v.  Hemphill,  5  Rich.  Eq. 
95.     To  the  same  effect  are.  Given 
V.  Hilton,  95  U.   S.  591;    Cleghorn 
V.  Scott,  86  Ga.  496;  Collins  v.  Col- 
lins,  126  Ind.   559;   Daman  v.  Bib- 
ber, 135  Mass.  458;  State  v.  Holmes, 
115  Mich.  456;  Leigh  v.  Savidge,  14 
N.    J.    Eq.    124;    Booth    v.    Baptist 
Church,    126   N.   Y.   215;    Smith   v. 
Jones,  4  Ohio,   115;   Gilpin  v.  Wil- 
liams,   17     O.     S.    396;     Colston   v. 
Bishop,  1   Ohio  C.  C.  460;   Alexan- 
der V.  Mendenhall,  32  Weekly  Law 
Bull.  173;  Martin's  Estate,  185  Pa. 
St.    51;     Gourley    v.  Thompson,   2 
Sneed.  387. 


33  State  V.  Holmes,  115  Mich. 
456;  Booth  v.  Baptist  Church,  126 
N.  Y.  215 ;  Martin's  Estate,  185  Pa. 
St.   51. 

34  Martin's  Estate,  185  Pa.  St. 
51. 

35  Cleghorn  v.  Scott,  86  Ga.  496. 
36Fairchild  v.   Edson,   154  N.  Y. 

199,   affirming   77   Hun.   298. 

37  Kelly  V.  Nichols,  17  R.  I.  306; 
19  L.  R.  A.  413. 

38  Collins  V.  Collins,  126  Ind. 
559;  see  Sec.  744. 

39  Smith  V.  Secor,  157  N.  Y.  402. 

40  Lippincott  v.  Davis,  —  N.  J. 
—   (1894)  ;  28  Atl.  587. 


LAW     OF     WILLS.  547 

erty  under  various  contingencies,  omits  to  make  provisions  for 
the  contingency  which  actually  arises,^^  such  property  de- 
scends as  intestate. 

Where  testator  devised  to  his  widow  his  entire  residuary 
estate  in  fee,  and  provided  that  if  she  remarried  she  should 
have  one-third  of  such  residue,  it  was  held  that  on  her  re- 
marriage two-thirds  of  the  residue  was  unprovided  for  and  was 
intestate  property."*^ 

So  wliere  testator  grants  a  life  estate  to  one  with  a  con- 
tingent remainder  to  unborn  children,  the  fee  subject  to  the 
first  taker  descends  to  testator's  heirs  as  intestate  property, 
subject  to  be  divested  by  the  subsequent  birth  of  the  children 
to  whom  the  remainder  was  given.^^ 

So  where  testator  devised  a  life  estate  to  one  with  power 
to  dispose  of  the  remainder  by  will,  such  remainder  descends 
as  intestate  property,  subject  to  be  divested  by  the  execution 
of  the  power  to  convey.^^ 

So  where  testator  devised  property  to  his  daughter  for  life, 
with  power  to  devise  this  property  by  will,  and  such  daughter 
was  his  only  heir  at  law,  it  was  held  that  she  took  a  fee  by 
descent,  although  testator  clearly  intended  that  she  should 
take  only  a  life  estate.^  ^ 

Where  a  devise  is  revoked  by  codicil,  and  no  disposition 
is  made  of  it,  it  descends  as  intestate  property.^^ 

§467.     Presumptions  as  to  disinheritance. 

The  presumptions  on  the  subject  of  disinheritance  must, 
in  construing  a  will,  be  carefully  balanced  against  those  upon 

41  Bennett  v.  Packer,  70  Conn.  67;  9  L.  R.  A.  211;  Nightingale  v. 
357;  De  Silver's  Estate,  142  Pa.  St.  Burrell,  15  Piclc.  104;  Harris  v. 
74;  Nebinger's  Estate,  185  Pa.  St.  McLaren,  30  Miss.  533;  Robinson  v. 
399;    Wood  v.   Mason,   17   R.   I.   99.  Palmer,     90     Me.     246;     Gilpin     v. 

42  Bennett  v.  Paclver,  70  Conn.  Williams,  25  O.  St.  295.;  Stokes  v. 
357.  ( Hence  the  widow  was  entitled  Vanwyck,  83  Va.  724;  In  re  Ken- 
to  a  distributive  share  of  such  per-  yon,  Petitioner,  17  R.  I.  149 ;  Bigley 
sonalty.)  v.  Watson,  98  Tenn.  353;  38  L.  R.  A. 

43  .Joslin   V.   Hammond.    3   Myl.   &  679. 

K.   110;   Rand  v.  Butler,  48   Conn.  4*  Folger  v.  Titcomb,  92  Me.  184; 

293;     Harrison    v.    Weatherby,    180       Collins  v.  Wickwire,  162  Mass.  143. 
HI.    418;    Coots   v.   Yewell,   95   Ky.  45  Wilder  v.  Howland.  102  Ga.  44. 

367;    Hills   v.    Barnard,    152    Mass.  46  Minkler     v.     Simons,    172    HI. 

323. 


5-18  LAW     OF     WILLS. 

the  subject  of  partial  intestacy,  since  the  two  are  sharply  con- 
trasted, and  possibly  in  some  cases  may  even  prove  antagon- 
istic. The  older  law  books  and  many  cases  insist  quite 
strenuously  that  every  reasonable  construction  in  the  will 
must  be  made  in  favor  of  the  heir  at  law ;  and  that  he  can  be 
disinherited  only  by  words  clearly  and  necessarily  producing 
that  effect.^  ^ 

"In  construing  a  will  under  which  title  is  asserted  by  a 
stranger  or  person  not  claiming  by  immediate  descent,  all 
doubts  will  be  resolved  in  favor  of  the  heir  or  next  of  kin,  it 
being  a  maxim  that  the  heir  will  not  be  disinherited  except 
by  express  words  or  by  necessary  implication."^^ 

The  earlier  statements  of  this  legal  principle  are  possi- 
bly somewhat  modified  by  modern  authority.  If  the  tes- 
tator in  any  particular  case  had  chosen  to  revoke  his  will 
and  to  die  intestate,  his  property  would  descend  in  accord- 
ance with  the  Statutes  of  Descent  and  Distribution.  This 
possibility  that  his  relatives  may  succeed  to  his  property  un- 
der these  statutes  is  one  which  is  looked  upon  by  many  peo- 
ple as  almost  in  the  nature  of  a  right,  and  there  is  a  strong 
feeling  that  the  testator  owes  a  legal  duty  to  provide  for 
them  by  will.  Further,  if  testator  had  made  a  will 
which  disposed  of  but  part  of  his  property,  the  residue  of  his 
estate  would  pass  under  these  laws. 

The  courts  are  nearly  unanimous  in  holding  that  where  tes- 
tator does  not  by  will  dispose  of  the  whole  of  his  estate,  no 
negative  words  of  exclusion  can  prevent  the  rest  of  the 
property  from  passing  under  the  Statutes  of  Descent  and  Dis- 


47Wilkins  v.  Allen,  18  How.    (U.  279;   Mathews  v.  Krisher,  59  O.   S. 

S.),  385;  Walker  V.  Parker,  13  Pet.  562;    Mclntire   v.    Ramsey,    23    Pa. 

(U.  S.),  166;  Pendleton  V.  Larrabee,  St.  317;   Stewart's  Estate,   147  Pa. 

62    Conn.    393;    Bill    v.    Payne,    62  St.     383;     Hoover    v.    Gregory,     10 

Conn.  140;  Downing  V.  Bain,  24  Ga.  Yerg.      (Tenn.),     444;    Wootton   V. 

372;    Wilder    v.    Holland,    102    Ga.  Redd,  12  Gratt.   (Va.),196. 

44;    Andrews    v.    Harron,    59    Kan.  This   extreme  statement   is  some- 

771 ;  Howard  v.  American  Peace  So-  what  qualified  by  other  cases.  Ban- 

ciety,  49  Me.  288  :  Mullarky  v.  Sul-  ning  v.  Banning.  12  O.  S.  437. 

livan,  136  N.  Y.  227 ;  Bane  v.  Wick,  48  Stewart's    Estate,    147    Pa.    St 

19  Ohio,  328 ;  Crane  v.  Doty,  1  O.  S.  383. 


549 

LAW     OF     WILLS. 


tribntion.  It  not  infrequently ^lappens  that  testator  by  name 
specifically  provides  that  certain  of  his  relatives  _  shall  not 
receive  any  part  of  liis  estate.  Such  a  provision  is  entirely 
ineffectual  as  to  his  intestate  property."^^ 

\nd  so  where  testator  makes  specific  bequests  of  his  prop- 
erty, and  leaves  a  part  of  the  same  undisposed  of,  such  part 
will  descend  in  accordance  with  the  law  of  descent  and  distri- 
bution, irrespective  of  the  actual  intention  or  expectation  oi 

testator  ^^ 

So  where  testator  shows  by  his  whole  will  that  his  intention 
is  to  exclude  certain  near  relatives  in  favor  of  more  distant 
ones,  any  property  undisposed  of  will,  nevertheless  descend 
as  intestate  property  to  such  near  relatives  to  the  exclusion  of 
those  more  remote.^  ^  ^ 

So  where  testator  left  his  wife  a  life  estate  m  his  realty, 
and  made  no  disposition  of  the  remainder,  which,  under  the 
statutes  then  in  force,  would  descend  to  his  brothers  and 
sisters,  it  was  held  that  where  the  law  of  descent  was  changed 
before  testator's  death  so  that  this  intestate  realty,  being  non- 
ancestral  property,  descended  to  his  wife  in  preference  to  his 
brothers  and  sisters,  such  property  must  descend  m  accord- 
ance with  the  statutes  in  force  at  testator's  death,  although 
testator  clearly  did  not  intend  that  his  wife  should  have  a 

fee.^2 

In  some  states,  however,  this  rule  is  not  in  force.  The 
courts  attempt  in  these  states  to  carry  out  testator's  intention 
by  construing  these  negative  words  as  a  gift  to  the  remammg 
heirs  or  next^of  kin,  to  the  exclusion  of  the  heir  excepted.^s 

This  effect  was  given  to  a  will  as  follows:     "For  sundry 

40Laurencev.  Smith,  103  111.  149;  State    v.    Holmes,    115    Mich.    456 

Zimmerman  v.  Hafer,  81   Md.   347;  Clarkson    v.    Poll,    17    K    L    646 

32  Atl.  316;  Wells  v.  Anderson   (N.  Mathews  v.  Krisher,  59  O.   S.  5b- 

H  )     44  Atl.  103 :   Andrews  v.  Har-  Youn-  v.  Kinkead,  101  Ky.  252. 
von,'    59    Kan.    771;     Gallagher    v.  5i  Bill  v.  Payne,  62  Conn.  140 

Crooks,    132    N.    Y.    338;    Crane   v.  52  State  v.  Holmes,  115  Mich   456 ; 

Doty,  1  0.  S.  279.  Mathows  v.  Krisher,  59  O   St.  562. 

50  Bill   V.    Pavne,    62    Conn.    140:  ^«  Tabor  t.  Mclntire,  79  Ky.  505; 

Wilder    V.    Holland,    102    Ga.    44;  Allen's    Succession,    49   L.    A.    Ann. 

Andrews   v.   Harron,   59   Kan.    771;  1096. 


550  LAW    OF     WILLS. 

reasons  and  bad  treatment,  it  is  my  will  that  Boone  Tabor 
shan't  have  any  of  my  property  and  Thos.  Mclntire  only 
through  a  trustee  in  the  way  of  clothes  and  something  to 
keep  him  from  suflfering."^'* 

Courts,  however,  go  considerably  farther  than  this  in  pro- 
tecting the  interests. of  the  heirs  and  next  of  kin.  In  the  con- 
struction of  the  provisions  of  a  will  in  some  jurisdictions  the 
general  rule  is  laid  down  in  almost  the  same  language  as  in  the 
common  law  rule,  that  the  heir  at  law  is  not  to  be  disinherited 
unless  such  an  intent  clearly  appears  from  the  language  of  the 
will,  either  expressly  or  necessarily  implied.^^ 

Where  this  principle  is  not  expressed  in  such  sweeping 
language,  it  is  always  held  by  the  courts  where  the  will  is 
equally  susceptible  of  two  constructions,  one  in  favor  of  the 
heirs  and  the  other  in  favor  of  some  more  distant  relative,  that 
the  one  in  favor  of  the  heir  will  be  preferred.^® 

So  in  construing  a  will,  the  courts,  in  case  of  doubt,  lean 
toward  a  construction  which  conforms  as  nearly  as  possible  to 
the  Statutes  of  Descent  and  Distribution.^'^ 

Thus,  in  a  devise  to  testator's  children  in  existence  at  the 
time  of  his  death,  it  will  be  presumed  that  testator  intended 
an  equality  of  distribution  among  them.^^ 

In  the  case  of  the  death  of  some  of  testator's  children,  the  law 
will,  unless  the  contrary  appear  on  the  face  of  the  will,  assume 
that  a  distribution  per  stirpes  in  accordance  with  the  prin- 
ciple of  lineal  representation  is  intended,^^  if  lapse  is  pre- 
vented in  any  way. 

54  Tabor  v.  Mclntire,  79  Ky.  505.      499 ;    Fahnestock's  Estate,   147   Pa. 

55  Pendleton  v.  Larrabee,  62  Conn.       St.  327. 

393;    Wilder    v.    Holland,    102    Ga.  5S  pinkham    v.    Blair,    57    N.    H. 

44;    Mathews   v.   Krisher,   59   0.    S.  226;    Patterson's  App.,   128   Pa.   St. 

562;   Bell's  Estate,  147  Pa.  St.  .389,  269. 

1892;    23    Atl.    577;    Stewart's    Es-  so  Doe  v.  Considine,  6  Wall.  458  ; 

tate,   147   Pa.   St.   383.  Dale  v.  White,  33  Conn.  294;   Teele 

56  Pendleton  v.  Larrabee,  62  Conn.  v.  Hathaway,  129  Mass.  164;  Edger- 
393;  Do\\Tiing  v.  Bain,  24  Ga.  372;  ly  v.  Barker,  66  N.  H.  434;  28  L. 
Thompson  v.  Shackelford,  6  Tex.  R.  A.  328;  Goebel  v.  Wolf,  113  N. 
Civ.  App.   121.  Y.   405;    Dunlap's   Appeal,    116   Pa. 

57Geery    v.    Skelding,    62    Conn.       St.  500;  Chess's  Appeal,  87  Pa.  St. 

362;   .30  Am.  Rep.   361. 


LAW    OF    WILLS.  551 

Where  a  residuary  clause  is  capaWe  of  two  constructions, 
one  of  which,  making  it  a  general  residuary  clause,  will  result 
in  the  exclusion  of  testator's  heirs,  and  the  other  of  which, 
■  making  it  a  particular  residuary  clause,  will  leave  a  provision 
for  testator's  heirs  under  the  intestate  laws,  that  provision 
will  be  preferred  which  leaves  a  provision  for  the  heirs.^^ 

§468.     Devise  by  implication. 

Since  the  courts  endeavor  to  ascertain  the  intention  of  testa- 
tor from  his  whole  will,  rather  than  disjointed  parts  thereof, 
and  enforce  this  intention,  if  lawful,  when  thus  ascertained, 
it  follows  that  it  is  possible  for  testator  to  dispose  of  property, 
not  by  any  formal  disposition  in  his  will,  but  by  necessary 
implication  from  his  will  taken  as  a  whole.  The  presumption 
is  very  strong,  however,  against  his  having  intended  any  devise 
or  bequest  which  he  has  not  set  forth  in  his  will.  There  must, 
as  has  been  quoted  in  recent  cases,  be  a  probability  arising 
from  the  whole  will  that  testator  intended  to  make  the  bequest 
or  devise,  which  he  has  not  set  forth  expressly,  so  strong  that 
it  can  not  be  supposed  that  anv  other  intention  existed  in  the 
mind  of  testator.^^ 

But  where  testator  clearly  intends  to  dispose  of  property  by 
his  will  to  certain  beneficiaries,  the  courts  will  enforce  such 
a  provision  though  no  gift  is  made  in  formal  language,^^ 

Where  an  estate  is  devised  to  the  heirs  or  next  of  kin  of 
testator  by  such  description,  after  the  death  of  another,  a  life 
estate  is  by  implication  created  in  that  other.^^ 

60  Davis  V.  Davis,  62  O.  S.  411.  62  Boston    Safe    Deposit    &    Trust 

eiMcMichael  v.  Pye,  75  Ga.  189;  Co.  v.  Coffin,  152  Mass.  95 ;  8  L.  R. 

Reinhardt's    Estate,    74    Cal.    365;  A.    740;    Masterson    v.    Townshend, 

Eneberg    v.    Carter,   98     Mo.    647;  123  N.  Y.  458 ;  10  L.  R.  A.  816,  cit- 

Barnhard  v.   Barlow,   50   N.  J.   Eq.  ing  Goodright   v.   Hoskins,   9   East. 

131;    De    Silver's    Estate,    142    Pa.  306 ;  Jackson  v.  Billinger,  18  Johns. 

St.    74;    Sutherland   v.    Sydnor,   84  386. 

Va.  880;   Bartlett  v.  Patton,  33  W.  63 /„,  re  Springfield   (1894),  3  Ch. 

Va.  71 ;  5  L.  R.  A.  523.    This  is  sub-  603;     64    L.   J.    Ch.    (N.    S.)    201; 

stantially    the     language    used     by  Smith's    Trusts,    L.    R.    1    Eq.    79; 

Lord  Eldon  in  Wilkinson  v.  Adam,  Blake's    Trusts,    L.    R.    3    Eq.    799; 

1  Ves.  &  B.  445.  Masterson  v.  To^vnshend,  123  N.  Y, 

458. 


552  LAW     OF     WILLS. 

But  where  the  devise  after  the  death  of  another  is  to 
strangers  to  testator's  blood"'^  or  to  persons,  describing  them 
bj  name,  who  happen  to  be  heirs  or  next  of  kin  of  testator,*^'^ 
there  will  be  no  devise  by  implication  to  the  person  at  whose 
death  the  estate  is  to  take  effect.  The  reason  for  this  dis- 
tinction is,  that  where  the  testator  specifically  devises  property 
to  his  heirs  or  next  of  kin  at  the  termination  of  a  life  estate, 
he  can  not  intend  that  they  should  take  any  sooner;  and  since 
he  evidently  means  to  dispose  of  the  beneficiary  interest  en- 
tirely, the  person  at  whose  death  the  estate  is  to  take  effect 
must  be  intended  by  testator  as  the  beneficiary  in  the  mean- 
time. But  where  the  devise  or  bequest  is  to  strangers  at  the 
termination  of  the  life  estate,  it  is  simply  a  case  of  partial 
intestacy;  and  the  undisposed  of  interest  in  the  property 
during  the  life  of  the  person  indicated  goes  to  the  heirs  and 
next  of  kin. 

Where  the  testator  recites  in  his  will  that  he  has  made  a 
specified  provision  for  a  designated  person  in  another  part  of 
the  will,  and  this  recital  incorrectly,  but  nevertheless  clearly, 
shows  the  intention  on  the  part  of  testator  to  make  such  dis- 
position of  his  property  by  will,  it  is  therefore  held  to  create 
a  devise  by  implication.^^  But  where  the  testator  in  his  will 
recites  erroneously  that  he  has  conveyed  certain  of  his  real 
estate  by  deed  to  a  certain  named  person,  it  does  not  show  an 
intention  to  dispose  of  the  property  by  will,  but  merely  testa- 
tor's opinion  as  to  the  legal 'effect  of  some  pre-existing  instru- 
ment. If,  therefore,  such  pre-existing  deed  is  for  any  reason 
invalid,  the  reference  to  it  in  the  will  can  not  be  held  to 
amount  to  a  devise  by  implication  of  the  property  described  in 
such  deed  to  the  grantee  therein.^''' 

64  Ralph   V.   Carriek,   11   Ch.   Div.      v.  Geiger,  69  Ga.  498:   Hunt  ex  rel 
8"3.  V.  Evans,  134  111.  496;   11  L.  R.  A. 

65  7?e    Springfield     (1894),    3    Ch.       185. 

603;  64  L.  J.  Ch.   (N.  S.)   201:  Gil-  67  Hunt  ex  rel  v.  Evans,   134  111. 

pin  V.  Williams.  25  0.  S.  283.  496;    11    L.    R.   A.    185;    Benson   v. 

66Farrer   v.    St.   Catharine's   Col-  Hall,    150    111.      60:      Williams     v. 

lege,   L.   R.    16   Eq.    19;    Jordan   v.  Allen,    17    Ga.    81;    Zimmerman    v. 

Fortescue,   10  Beav.  259;   Harris  v.  Hafer,      81      Md.      ,347;      32      Atl. 

Harris,  Ir.  Rep.  3  Eq.  610;  Atwood  316:    Swenson's    Estate,     55    Minn. 


LAW     OF     WILLS. 


553 


So  other  declarations,  merely  showing  testator's  opinion  as 
to  the  ownership  of  certain  property,  can  not  be  construed 
so  as  to  amount  to  devise  by  implication.  Thus,  a  declaration 
in  a  will  to  the  effect  that  testator  had  no  separate  property 
of  his  o^vn,  but  that  his  entire  estate  consisted  in  his  interest 
in  the  community  property  owned  by  himself  and  his  wife, 
has  not  the  effect  of  converting  his  separate  property  into 
community  property,  nor  does  it  amount  to  an  implied  devise 
to  his  wife  of  one  half  of  his  separate  estate.^^  iSTor  do  testa- 
tor's declarations,  showing  a  mistake  as  to  law  of  descent, 
amount  to  a  devise  by  implication.  Thus,  where  community 
property  would  descend  to  the  wife  in  case  of  intestacy,  no 
devise  by  implication  was  created  by  a  provision  that  such 

property  should  go  "according  to  law,  except  my  sister  A 

shall  be  excluded  from. any  share  in  my  estate,"  though  testator 
evidently  believed  that  his  half  of  the  community  property 
would,  in  case  of  intestacy,  go  to  his  brothers  and  sisters.*^^ 

Where  the  testator  provided  that  his  estate  should  remain  as 
it  is  during  his  wife's  lifetime,  and  at  her  death  it  should  be 
equally  divided  among  his  children,  it  was  held  that  his  wife 
took  a  life  estate  by  implication.'^*^  And  where  the  testator  ex- 
pressly devises  a  life  estate  to  his  wife,  and  then  made  a 
devise  over  "of  so  much  thereof  as  may  remain  unexpended," 
it  was  held  that  such  a  provision  conferred  by  implication  a 
power  of  disposition  upon  the  widow.'^^  And  where  testator 
devised  land  in  trust  to  pay  a  fixed  annuity  to  his  wife  as 
long  as  she  should  remain  unmarried,  with  power  of  sale  if 
necessary,  in  which  case  his  widow  was  to  receive  the  same 
annuity  as  long  as  she  remained  unmarried,  in  which  case, 
upon  her  death  or  second  marriage,  the  proceeds  should  be 
paid  to  the  brother  of  testator,  it  was  held  that  this  constituted 

300;    Tn    re    Bagot    (1893),    3    Ch.  69  MeCown    v.    Owens,    Tex.    Civ. 

348;     Langslow     v.     Langslow,     21  App.   ( 1897 ),  40  S.  W.  336. 

Beav.  552 ;  Ralph  v.  Watson,  9  L.  J.  7o  Nicholson  v.  Drennan,  35  S.  C. 

Ch.  328;  Bowles  v.  Caudle   (N.  C),  333;  so  Anders  v.  Gerhard,  140  Pa. 

35  S.  E.  604.  St.  153. 

68  Hatch    V.    Ferguson,     57     Fed.  7i  Cashman's  Estate,  28  111.  App. 

Rep.  966 ;  C'laniorgan  v.  Lane,  9  Mo.  346 ;  see  Sec.  695. 
446. 


554  LAW    OF     WILLS. 

a  devise  of  the  property  itself  to  testator's  brother,  subject  to 
the  annuity  to  the  widow. '^^ 

And  where  testator  devised  to  a  son  a  certain  fann,  ex- 
cluding the  minerals,  and  then  provided  that  each  of  his  re- 
maining seven  children  should  receive  an  eighth  interest  in 
the  estate,  it  is  held  that,  since  it  appeared  to  be  the  general 
intention  of  testator  to  make  an  equal  disposition  of  his  prop- 
erty among  his  children,  a  devise  by  implication  of  the  undis- 
posed of  eighth  of  the  minerals  was  created  in  favor  of  the 
son  to  whom  the  farm  was  devised.'^^ 

A  devise  to  A  of  all  the  property  of  testator,  with  a  pro- 
vision "I  desire  the  said  A  and  B  to  have  the  exclusive  benefit 
of  the  above  bequeathed  estate,  free  from  any  control  of  C" 
[C  being  the  husband,  A  the  wife  and  B  the  daughter],  was 
held  not  to  be  a  gift  by  implication  to  B.'^^ 

A  devise  to  one  for  life  with  a  remainder  over,  if  the  life 
tenant  dies  without  leaving  children,  does  not  of  itself  create 
a  gift  by  implication  to  the  children  of  the  life  tenant.'^^ 

§469.     Construction  of  wills  passing  both  realty  and  personalty. 

While  in  some  particular  cases  the  prima  facie  meaning  of 
words  which  refer  to  realty  may  be  different  from  the  meaning 
of  the  same  words  referring  to  personalty j"^^  yet  where  the  same 
words  are  used  in  a  will,  as  applying  generally  to  both  real  and 
personal  property,  it  will  not  be  presumed  that  testator  in- 
tended these  words  to  refer  to  one  thing  with  reference  to  his 
realty  and  to  another  thing  with  reference  to  his  personal 
property.'^''' 

72  Masterson  V.  Townshend,  123  N".  v.  Restal,  24  Beav.  218;  Turner  v. 
Y.  458;  10  L.  R.  A.  816.  Withers,  23  Md.   18;   Hoopes's  Es- 

73  Christie  v.  Christie,  162  Pa.  St.  tate,    18.5   Pa.    St.    172. 
485.  76  See  Chapt.  XXI. 

T4Balliett  v.  Veal,  140  Mo.  187;  77  Heilman  v.   Heilman,   129   Ind. 

41  S.  W.  736.  59;    Adams   v.   Farley,  —  Miss.   — 

75Rawlin's  Trust    (C.  A.),  L.  R.  (1898);     18    So.  390;    Morrison  v. 

45  Ch.  D.  299;  Scale  v.  Rawlins  (H.  Truby,   145   Pa.   St.  540;   Sellers  v. 

L.  E.),    (1892),  A.  C.   342;    Sparks  Reed,  88  Va.  377. 


LAW    OF    WILLS. 


555 


§470.     Inconsistent  provisions. 

We  have  seen  that  a  fundamental  rule  of  construction  is 
that  the  court,  in  construing  a  will,  will  endeavor  to  give  effect 
to  every  part  of  the  same.'''^  As  a  particular  application  of 
this  rule  rather  than  a  separate  rule,  it  follows  that,  within 
all  reasonable  limits,  the  courts  will  endeavor  to  reconcile  two 
apparently  inconsistent  provisions  of  a  will  rather  than  to 
absolutely  ignore  either,  or  to  declare  that  they  are  both  void 
or  uncertain."^^  This  is  especially  true  when  the  effect  of  the 
subsequent  clause  is  not  to  cut  dowT^i  the  preceding  gift,  but 
to  enlarge  it.  "It  has  never  been  held,  however,  that  a  sub- 
sequent provision  which  diminishes  a  preceding  gift,  as  by  cut- 
ting down  to  a  life  estate  a  prior  devise,  is  so  far  conflicting 
and  irreconcilable  with  that  gift  as  to  be  in  a  legal  sense 
repugnant  thereto,  and  emphatically  never  when  the  effect  of 
the  later  gift  is  to  enlarge  the  former."^*^ 

The  rule  already  referred  to,^^  that  a  codicil  is  to  be  con- 
strued, as  far  as  is  possible,  so  as  to  harmonize  with  the  pro- 
visions of  the  will  to  which  it  is  attached,  is  simply  an  applica- 
tion of  the  principle  under  discussion  to  a  particular  case.^^ 

As  a  last  resort,  in  case  of  an  absolute  and  irreconcilable 
discrepancy  between  two  clauses  of  a  will,  the  courts  will 
enforce  the  clause  which  is  last  in  place  in  the  will  and  abro- 
gate the  one  which  comes  first.^^ 

78  See  Sec.  462.  peal,  53  Pa.  St.  106;  Dill  v.  Dill,  1 
79Wriglit  V.  Denn,10  Wheat. 239;  De  Saus  (S.  Car.),  237;  Duncan  v. 
Vandiver  v.  Vandiver,  115  Ala.  328 ;  Philips,  3  Head.  (Tenn.),  415;  Co- 
Warner  V.  Willard,  54  Conn.  470;  nant  v.  Palmer,  63  Vt.  310;  21 
Jenks  V.  Jackson,  127  111.  341 ;  Davis  Atl.  1101 ;  Houser  v.  Ruffner,  18  W. 
V.  Hoover,   112  Ind.  423;   Claflin  v.  Va.  244. 

Ashton,  128  Mass.  441 ;   Cushing  v.  so  Fahnestock's     Estate,  147     Pa. 

Burrell,    137    Mass.    21;    Prosser   v.  St.  327. 

Hardesty,    101   Mo.   593;    Baxter  v.  si  See  Sec.  462. 

Bowyer,    19    0.    S.    490;    James    v.  §2  Sturgis  v.  Work,  122  Ind.  134; 

Pruden,  14  0.  S.  251:  Young  v.  Mc-  Goodwinn  v.  Coddington,  154  N.  Y. 

Intire,  3  Ohio,  498;  Worman  v.  Tea-  283. 

garden,  2  O.  S.  380;  Parker  v.  Par-  83  Griffin  v.  Pringle,  56  Ala.  486; 

ker,  13  O.  S.  95;  Sullivan  v.  Strauss,  Parks  v.  Kimes,  100  Ind.  148;  Jor- 

161   Pa.   St.    145;    Fahnestock's   Es-  dan  v.  Woodin,  93  lo.  453;   Covert 

tate,  147  Pa.  St.  327  ;   Shreiner's  Ap-  v.    Sebern,    73    lo.    564;    Carter   v. 


556  LAW     OF     WILLS. 

This  rule,  however,  is  resorted  to  onlv  when  two  clauses  are 
so  irreconcilable  that  they  can  not  stand  together,  and  is  in- 
applicable when  the  will  can  be  so  construed  as  to  give  effect 
to  the  whole  of  it.  ^^  ''Both  clauses  are  contained  in  the  same 
instrument  and  are  both,  therefore,  simultaneous  expressions 
of  the  testator's  intent,"  "and,  beside,  as  already  stated,  the 
rule  which  gives  effect  to  the  later  expression  of  the  testator's 
intent  is  to  be  resorted  to  only  when  all  attempts  to  reconcile 
inharmonious  provisions  have  proved  unavailing."  * 

§471.     General  rules  controlling  definitions. 

The  law  recognizes  that  in  many  cases  wills  are  drawn  by 
the  testator  without  the  assistance  of  legal  advice.  From  this 
arose  one  of  the  most  valuable  maxims  of- law  in  the  construc- 
tion of  wills,  '^benigne  interprefamur  chartas  propter  sirapli- 
citatem  laicorum."^^ 

It  is  presumed,  therefore,  that  the  words  of  the  will  are  used 
in  their  popular  and  conventional  meaning,  unless  from  the 
face  of  the  will  they  appear  to  be  otherwise  used.^^ 

Thus,  a  provision  that  the  w^ife  of  testator  should  be  "sole 
controller"  of  the  property  of  testator,  and  charging  all  his 
just  debts  upon  a  certain  fund,  was  held  to  constitute  his  wife 
his  executrix,  but  not  sole  legatee.^'^ 

If,  however,  testator  uses  words  which  have  a  definite  and 
well  understood  technical  meaning,  the  prima  facie  presump- 

Alexander,  71  Mo.  585;  Hendershot  85  Blackstone's   Com.,    Book   2,   p. 

V.  Shields,  42  N.  J.  Eq.  317;  Rogers  379. 

V.  Rogers,  49  N.  J.  Eq.  98;  Kin-  se  Hamilton  v.  Ritchie,  (H.  L.), 
kele  V.  Wilson,  151  N.  Y.  269;  (1894)  ;  A.  C.  310;  Crosby  v.  Mason, 
Coonrod  v.  Coonrod,  6  Ohio,  114;  32  Conn.  482;  Robertson  v.  John- 
Young  V.  Mclntire,  3  Ohio,  498;  son,  24  Ga.  102;  Cowles  v.  Henry, 
Davis  V.  Boggs,  20  0.  S.  550;  Par-  61  Minn.  459;  63  JST.  W.  1028;  Tan- 
ker V.  Parker,  13  0.  S.  95;  Howe  benhau  v.  Dunz,  125  111.  524,  affirm- 
V.  Fuller,  19  Ohio,  51 ;  Sheetz  Ap-  ing  20  111.  App.  262 ;  Vannerson  v. 
peal,  82  Pa.  St.  213;  Eraser  v.  Culbertson,  18  Miss.  150;  Edgerly 
Boone,   1   Hill    (S.  Car.),   360.  v.  Barker,  66  N.  H.  4.34;  28  L.  R.  A. 

84  Rogers  v.  Rogers,  49  N.  J.  Eq.  328  ;  Carter  v.  Reddish,  32  0.  S.  1 ; 

98.  Hart  v.  White,  26  Vt.  260 ;  Wallace 

*  In  re  Eisher,   19   R.   I.   53.  v.  Minor.  86  Va.  5.50:  10  S.  E.  23. 

87Wolffe  V.   Loeb,  98  Ala.  426. 


LAW    OF    WILLS. 


557 


tion  will  be  that  he  intended  to  use  them  in  this  sense,  unless 
it  appears  plainly  from  the  context  that  another  meaning  was 
intended.^^ 

These  rules  are  not  to  be  disturbed  by  the  fact  that  the  tes- 
tator was  illiterate  and  uneducated.  The  presumption  will  be, 
notwithstanding  that  the  words  employed  are  used  in  their 
correct  meaning,  unless,  from  the  will  itself  or  from  admissible 
evidence,  it  appears  that  some  other  meaning  was  intended.*^ 
Still  the  illiteracy  of  testator  and  his  inability  to  express  him- 
self in  language  technically  correct  are  important  in  arriving- 
at  the  meaning  of  the  language  actually  used  by  him.^^  The 
context  of  the  will  may  show  that  even  technical  words  were 
used  in  some  meaning  other  than  the  one  which  is  technically 
correct.^-^ 

§472.     Punctuation  and  grammar. 

Since  the  law  deduces  testator's  intention  from  the  whole 
will,  the  courts  are  within  the  proper  scope  of  their  powers 
in  inserting  punctuation,  when  necessary  to  explain  the  mean- 
ing, where  the  testator  has  omitted  this  aid  to  clearness.^^ 

Further,  if  the  intention  of  testator  is  clear  the  courts  will 
give  effect  to  it,  although  in  so  doing  they  may  ignore  in  part 
the  punctuation  which  the  testator  has   actually  employed.^ ^ 

88  Wallace  v.  Minor,  8G  Va.  550 ;  92  Napier  v.  Davis,  7  J.  J.  Marsh 
10  S.  E.  423;  Marshall  v.  Hadley,  (Ky.),  283;  Lycan  v.  Miller,  112 
50   N.   J.    Eq.    547;    Evans   v.   God-       Mo.  548;  20  S.  W.  36. 

bold,   6  Rich.  Eq.  26 ;   Townsend  v.  93  Black  v.   Herring,   79  Md.   146. 

Townsend,  25  O.  S.  477.  (A  gift  was  to  be  paid  by  executors 

89  Ihrie's  Estate,  162  Pa.  St.  369.  to  A  "should  they  think  proper  so 

90  Strong  v.  Cummin,  2  Burr.  770;  to  do  to  pay  over  from  time  to 
Davis  v.  Boggs,  20  O.  S.  550.  time"   the  net   income  to   B,   testa- 

91  Stevenson  v.  Evans,  10  O.  S.  tor's  son.  As  from  the  context  the 
307 ;   Davis  v.  Boggs,  20  0.  S.  550.  testator  evidently  meant  to  dispose 

"Although    the    phrase   'in    trust'  of  the  income,  it  was  held  that  the 

has  a  well-defined  and  legal  mean-  phrase  "should  they  think  proper" 

ing,  it  must  be  remembered  that  it  applied  to  the  gift  to  A,  and  not  to 

is  a  technical  phrase  and  peculiarly  the  gift  to  B.)      Rose  v.  Hale,  185 

liable,    therefore,    to    be    misapplied  111.    378;    Wildberger   v.    Cheek,    94 

or  used  in  some  secondary  sense  by  Va.  517. 
persons    not    learned    in    the    law." 
Davis  V.  Boggs.  20  O.  S.  550. 


558  LAW    OF     WILLS. 

And  where  the  punctuation  in  the  will  is  in  evident  accord 
with  the  intention  of  the  testator,  the  use  of  capitals  in  the 
middle  of  a  sentence  may  be  regarded  as  unintentional.^^ 
Where  testator's  intention  appears  from  the  will  taken  as  a 
whole,  this  intention  can  not  be  defeated  because  testator's 
intention    is   expressed   in   ungrammatical   language.^^ 

§473.     Modification  by  context. 

A  still  more  striking  application  of  the  principle  that  tes- 
tator's intention  is  to  be  deduced  from  the  whole  will,  is  found 
where  certain  words  are  rejected,  altered  or  transposed  by  the 
courts  in  order  to  give  effect  to  his  intention  which  appears 
from  the  consideration  of  the  whole  will.  The  courts  are 
reluctant  to  do  this.  "Doubtless,  unless  forbidden  by  what 
appears  to  be  the  clear  intention  of  the  testator,  effect  should 
be  given  to  every  word  used  by  him ;  but  cases  sometimes 
occur  where  from  the  misuse  of  terms  this  can  not  be  done, 
and  the  meaning  of  terms  have  to  be  modified,  and  sometimes 
words  even  rejected  in  order  to  preserve  and  give  effect  to 
what  is  the  manifest  intention  of  the  testator."  ^^  Still  it 
not  infrequently  happens  that  testator  makes  use  of  words 
which,  in  their  common  and  literal  meaning,  if  umnodified 
by  the  context  of  the  will,  will  either  be  inconsistent  with  the 
remainder  of  the  will  or  will  cause  illegal  dispositions  of  the 
property;  in  such  case  "the  meaning  of  words  and  phrases 
used  in  some  parts  of  the  will  must  be  derived  from  that 
which  would  attach  to  them  standing  alone,  and  then  must  be 

94  Eberhardt  v.  Perolin,  49  N.  J.  tor's  intentions.  Of  all  instruments 
Eq.  570;  Kinkele  v.  Wilson,  151  N.  that  need  the  benefit  of  a  liberal 
Y.   2G9.  construction  —  a    construction    that 

95  Thompson  v.  Thompson,  4  0.  S.  prefers  substance  to  mere  form — 
333.  wills  need  it  the  most."     Thompson 

"The  terms  of  a  will  are  not,  of  v.  Thompson,  supra;  so  Brasher  v. 

necessity,    to    be    construed    techni-  Marsh,  15  O.  S.  103. 

cally   and   with    strict   reference  to  96  Dulaney  v.  Middleton,   72  Md. 

grammatical  accuracy;  but  they  are  67,    citing   Thelluson    v.    Woodford, 

to  be  viewed  sensibly  and  liberally  4  Ves.  227. 
in  order  to  give  effect  to  the  testa- 


559 

LAW    OF    WILLS. 


compared  with  other  language  "-^  V  Tnd  thu    ^e 

i„stn.ment,  and  limitations  must  be  imphed,   «"<!  thus  th 
general  meaning  of  all  the  language  must  be  arrived  a. 
lo    although  reLt^ntly,  the  courts  exercise  this  power  of  re- 
•ectiu.  and  transposing  words.»»      And  this  P--  -3^  - 
end  to  construing  a  will  as  if  words  were  inserted  there 
!  Lre  it  appears  clearly  on  its  faee  that  ™"d;;  - 
omitted  solely  by  inadvertence,  and  are  essential  to  the  ex 
pression  of  testator's  manifest  intention        _ 

Thus,  where  legatee  had  been  given  the  income  of  a  fund 
a  provi  ion  "for  the  distribution  of  her  share"  was  eonstnie 
as  if  modified  so  as  to  read  "for  the  distribution  of  Ae  dr.. 
Ms  of  her  share" -,'»»  and  a  bequest  of  "five  thousand     m 
connection  with  other  money  legacies  may  be  read    five  thou- 
sand dollars."'"  ,1,     f    t  ti,„t 
The  courts  may  exercise  this  power  where  the  fact  tha 
words  are  omitted  by  accident  does  not  appear  unt.    the  court 
endeavors  bv  means  of  extrinsic   evidence  to  apply  the   de- 
scription in  the  will  to  the  subject-matter.'" 

Thus  the  courts  do  not  hesitate,  where  the  context  requires 
it,  to  construe  "and"  as  if  it  were  "or";'«=  and,  if  necessary, 

.,R„c  V.  Vmgut.  117  N.  y.  204;  ton  v.  Henderson    88  N^Car.  5«7; 

so  Wood's  Estate,  36  Cal.  81;  Mc  Greenough  -  Ca-    64  N^  H^     -6. 

.,               otnnl.v    m  T<-\   227.  Patterson  V.  Bead,  42  N.J.  Jiq.iw, 

""rtaant'^oung  mn,.290;  Van  Houten  v.  Pennington.  4  Ha,. 

""     T^         •+  xr  Trii«+  Co    V  Ch.  272;  Stevenson  v.  Brown,  3  Gi. 

rr    1^2     ZT  95       8     L     R.  503 ;   De'n  v.  Taylor,  2  South.  413 : 

A     740     Dre^v    Drew,   28   N.   H.  Nelson  v.  Combs,  3  Havr.  27;  M 

A.    740 ;    Drew  V    Urew  Hancock,    10     Hump.      (Tenn.), 

489;     Kanouse     v.    btockbower,    ^i  '                                 Trntt 

ttl       197-      48     N.     J.     Eq.      42;  368;     Wootton   v.   Redd,    12   Giatt. 

m.  "^rf  ^^ri:^  "  ^  - -^^  V.  Condel,  .3  111.  50. 

■  Shields   42  N.  J.  Eq.  317  ;  Hotaling  -^  Ross  v.  Kiger    42  W.  Va    402. 

f  Mar'h    132  N.  Y.  29;  Duncan  v.  .o.  Thomson  v.  Thomson,  115  Mo. 

Philips,     3     Head.      (Tenn.),     415;  56 ;  21  S.  W^108o 

East  V.  Garrett,  84  Va.  523.  -^  I^o.  v.  Vmgut,     1 .  ^ .  Y^  -04  , 

90Kello<.g  V.  Mix,  37   Conn.  243;  Hotalmg  v.   Marsh,   ^^^   f.   \.   29 

Co.pl  v.-Cooper,  7   HO..    ,OeU.  ^^^  ^/T'^K  ".0 'word"'; 

488;  Glover  v.  Condell,  163  111.  566,  v.    ^  ^ice  ^ 

Aulick   V.   Wallace.    Vi    Bush.    531 ;  Mason,  17  R.  I.  99. 
Heald  v.  Heald,  56  Md.  300  ;  Hower- 


560  LAW     OF     WILLS. 

the  courts  may  read  ''or"  as  if  it  were  "and."  ^^^  So,  where 
the  word  "donors"  was  clearly  used  for  "donees"  the  court  may 
read  it  as  if  it  were  written  "donees."^ "^  And  where  the 
context  requires  it,  a  devise  to  the  "youngest  grandchild"  of 
testator  has  been  read  as  if  it  were  to  the  "youngest  grand- 
child already  named."^'^'^ 

So  in  a  gift  of  the  share  of  the  daughter  who  died  without 
issue  "to  my  children  who  may  survive,  or  to  the  descendants  of 
their  children,"  it  was  held  that  "their"  should  be  read  "my."^'^'' 
So  "her"  may  be  read  "his."  ^°« 

The  word  "bequeath"  is  prima  facio  confined  to  person- 
alty; ^"^  but  where  used  with  reference  to  real  property  it  may 
be  treated  as  synonymous  with  "devise."  ^^^  And  so  the  word 
"devise,"  where  clearly  referring  to  personalty,  may  be  read  as 
if  it  were  "bequeath."  ^'^ 

Where  testator's  intention  appears  from  his  will  the  word 
"bequest"  may  even  be  held  to  apply  to  a  deed  given  in  the 
nature  of  an  advancement.^ ^^ 

The  word  "any"  must,  from  the  context,  often  be  read  as  if 
it  were  "all."  Thus  a  devise  over  on  the  death  of  "any"  child 
without  issue,  where  the  intention  is  clearly  that  the  gift  was 
not  to  take  effect  as  long  as  any  of  testator's  descendants  were 
in  existence,  was  read  as  if  it  were  a  gift  over  upon  the  death 
of  "all"  the  children  without  issue.^^^ 

So  the  word  "between"  may  be  read  as  if  it  were  "through" ; 
as  where  testator  divided  his  realty  by  a  "line  running  north 
and  south  between"  certain  sections,  where  the  line  between 
such  sections  ran  east  and  west.-^^^ 


104  Janney  v.  Sprigg,  7  Gill.  "o  OToole  V.  Browne,  3  El.  &  Bl. 
(Md.),  197;  Slingluff  v.  Johns,  87  572;  Stumpenhousen's  Estate,  108- 
Md.  273;  Cody  v.  Bunn,  46  N.  J.  To.  555;  Allen  v.  White,  97  Mass. 
Eq.  131;  Ward  v.  Barrows,  2  0.  S.  504;  Lamb  v.  Lamb,  131  N.  Y. 
241.  227. 

105  White  V.  Mass.  Institute  of  m  Tn  re  White,  125  N.  Y.  544 ; 
Tech.,  171  Mass.  84.  Clarke  v.  Clarke,  46  S.  Car.  230. 

106  Roe  V.  Vingnt,  117  N.  Y.  204.  112  Forsythe  v.  Mintier,  39  0.   S. 

107  Slingluff  V.  Johns,  87  Md.  273.  349. 

10s  Allen  V.  Boomer,  82  Wis.  364.  us  Banks'  Will,  87  Md.  425. 

109  Keating   v.    McAdoo,    180    Pa.  m  Briant   v.    Garrison,    150    Mo, 

St.  5.  655. 


LAW     OF     WILLS.  561 

Where  it  is  necessary  to  carry  into  elfect  the  clear  inten- 
tion of  the  testator,  different  parts  of  the  will  may  be  trans- 
posed.-^ ^^  Thus  where  the  testator  had  put  a  provision  for  a  be- 
quest of  a  certain  sum  of  money  in  the  midst  of  a  residuary 
clause  which  provided  that  the  residue  of  the  estate  should  be 
divided  into  a  certain  number  of  parts,  and  which  disposed 
of  all  of  these  j^arts,  it  was  held  that  the  inserted  clause  must 
be  read  as  if  it  preceded  the  residuary  clause,  since,  if  this 
legacy  were  deducted  after  alloting  two  of  the  shares  of  the 
estate,  two  remaining  shares  would  be  less  than  those  alread}' 
allotted,  which  was  directly  contrary  to  the  clear  intention  of 
the  testator.^  1^ 

§474.     Miscellaneous  examples  of  definitions. 

The  word  ''legacy"  in  a  codicil  which  gives  a  considerable 
sum  to  each  of  testatrix's  cousins  who  have  not  been  remem- 
bered by  a  money  "legacy,"  does  not  include  those  who  have 
received  gifts  of  articles  of  small  value  in  the  will.-^^'''  But 
one  to  whom  a  pair  of  rifles  was  given  by  will  was  held  to 
be  a  legatee.-^  ^^ 

Where  the  term  "Judge  of  Probate"  is  used  in  one  clause  of 
the  will  with  the  meaning  "Court  of  Probate,"  it  will  be  con- 
strued to  have  the  same  meaning  throughout  the  whole  will 
unless  the  contrary  clearly  appears.-^  ^^ 

The  word  "above"  as  used  in  a  will  refers  to  the  clause 
preceding  the  one  containing  such  word.^^*^ 

And  a  direction  for  distribution  of  property  "hereinbefore" 
given  does  not  apply  to  property  given  in  subsequent 
clauses.^  ^^ 

115  Latham  v.  Latham,  30  To.  294  ;  i"  White  v.  Mass.  Institute  of 
Hunt  V.  Johnson,  10  B.  Mon.  (Ky.),      Technology,  171  Mass.  84. 

342;    Merkle's  Appeal,   109   Pa.   St.  nsNeville  v.  Dulaney,  89  Va.  842. 

235;    Ferry's    Appeal,    102    Pa.    St.  ii9  Allen's  Appeal,   69   Conn.   702. 

207;  O'Neall  v.  Boozer,  4  Rich.  Eq.  120  McGee  v.  Hall,  2G  S.  Car.  179. 

22;   Creveling  v.  Jones,  1  Zab.    {N.  121  Reid  v.  Walbach,  75  Md.  205; 

J.),  573.  23  Atl.  472. 

116  Waters  v.  Waters,  —  Ky.  — 
(1895)  ;  16  Ky.  L.  Rep.  429;  28  S. 
W.  958. 


562 


LAW    OF    WILLS. 


Where  the  several  devises  are  connected  by  the  v/orA  "also," 
and  one  of  such  gifts  clearly  shows  what  duration  of  estate 
is  intended  and  the  rest  are  ambiguous,  it  was  held  that  tlie 
ambiguous  devises  are  to  be  considered  as  of  the  duration  of 
the  devise,  which  is  stated  in  clear  and  unmistakable  terms. 
This  holds  good  even  where  the  devises  were  in  such  general 
terms  as  to  pass  the  fee  or  absolute  ownership  if  standing 
alone;   and  they  may  thus  be  cut  down  to  a  life  interest.^ ^^ 

122  Rusk  V.   Zuck.    147   Ind.   388;  Thus   a   gift  of   certain  land   on 

Eberhardt  v.  Parolin,  49  N.  J.  Eq.  condition ;  'and  also'  certain  other 
570;  Noble  v.  Ayres,  61  O.  S.  491;  land  gives  the  land  last  devised 
56  N.  E.   199.  without     condition.       Yeatman     v. 

Dupont  V.  DuBose,  52  S.  C.  244;       Haney,  79  Tex.  67. 
contra,   Loring    v.    Haver,   86    Me, 
351;    Moon   v.   Moon,   2   Strob.   Eq. 
327. 


LAW     OF     WILLS. 


563 


CHAPTER  XXI. 

DESCRIPTION  OF   PROPERTY  DISPOSED  OF  BY  WILL. 


§475.     Words  passing  entire  estate. 

An  application  of  the  general  principle  that  the  courts  en- 
deavor to  ascertain  and  enforce  the  intention  of  the  testator, 
Avhether  expressed  in  technical  language  or  not,  is  found  in 
the  well-recognized  rule  that  any  words,  no  matter  how  infor- 
mal, which  clearly  show  testator's  intention  to  dispose  of  his 
entire  estate,  will  pass  such  estate,  even  though  the  description 
of  the  property  may  be  very  informal  and  lacking  in  technical 
accuracy.  This  result  is  also  aided  by  the  maxim  that  a  par- 
tial intestacy  is  to  be  avoided  where  the  construction  war- 
rants.-^ 

Where  a  clear  intent  to  dispose  of  all  of  testator's  prop- 
erty is  shown,  the  fact  that  in  addition  to  a  general  gift  an 
attempt  is  made  at  an  enumeration  of  the  specific  articles 
owned  by  testator,  does  not  prevent  the  general  gift  from  taking 
effect.^     So  a  gift  of  all  the  live  stock  "which  I  may  own  at 


1  Taubenhau  v.  Dimz,  125  111.  524,       Dempsey  v.  Taylor,  4  Tex.  Civ.  App. 
affirming  20  111.  App.  262;   Patrick       126. 


V.  Simpson,  L.  R.  24  Q.  B.  D.  128 
Sites  V.  Eldredge,  45  N.  J.  Eq.  632 
Sweitzer's  Estate,  142  Pa.  St.  541 
Woodside's  Estate,   188  Pa.  St.  45 


2  Sites  V.  Eldredge,  45  N.  J.  Eq. 
6.32 ;  Woodside's  Estate,  188  Pa.  St. 
45;  Dempsey  v.  Taylor,  4  Tex. 
Civ,  App.   126. 


564  LAW     OF     WII.LS. 

the  time  of  my  death"  passes  sheep  owned   by  testator  and 
leased  by  him  to  others.^ 

§476.     Estate. 

A  devise  of  testator's  "estate"  is  prima  facie  a  gift  of  both 
realty  and  personalty  where  not  moditied  by  the  context, 
since  "estate"  is  a  ^\'ord  of  such  general  import  as  to  pass 
property  of  every  species.'*  Thus  a  devise  of  "all  my  estate" 
and  of  testator's  "plantation"  in  a  certain  county  is  sufficiently 
definite.^ 

A  gift  of  "all  the  real  and  personal  estate  above  bequeathed 
to  my  wife"  passes  certain  county  bonds,  the  income  of  which 
was  given  to  her  for  life.^ 

This  prima  facie  meaning  may,  however,  be  modified  by 
the  context. 

§477.     Property. 

A  gift  of  testator's  "property"  may,  if  not  controlled  by 
the  context,  pass  both  realty  and  personalty,  "property"  being 
like  "estate,"  a  word  of  general  import.'^ 

A  gift  to  testator's  wife  of  "all  of  my  personal  property, 
both  real  and  personal,"  passes  all  testator's  real  estate  in 
fee  simple.^ 

Language  used  in  connection  with  such  a  gift,  such  as  re- 
ferring to  an  investment  thereof  and  a  direction  for  paying 
the  "principal  sum"  at  a  certain  time,  may  show  that  the  gift 

3  Bray  v.  Pullen,  84  Me.   185.  ^  PrJce    v.    Hutchins,    —    Ky.    — 

4Flannery   v.   Hightower,   97   Ga.        (1896):   33  S.  W.   1120 


592 ;  Mark's  Succession,  35  La.  Ann 
1054;  Dewey  v.  Morgan,  18  Pick 
295 ;  Andrews  v.  Brumfield,  32  Miss 
107;  Shumate  v.  Bailey,  110  Mo 
411;  Cook  V.  Lanning,  40  N.  J.  Eq 
369;  Norris  v.  Clark,  10  N.  J.  Eq 
51 ;  Den  v.  Drew,  14  N.  J.  L.  68 
Hofius  V.  Hofius,  92  Pa.  St.  305 
Xaglee's  Estate,  52  Pa.  St.  154; 
Smith   V.   Smith,   17   Gratt.  268.  537 

5  Flannery  v.   Hightower,  97   Ga. 
592. 


7  White  V.  Keller,  68  Fed.  796; 
Taubenhau  v.  Dunz,  125  111.  524, 
affirming  20  111.  App.  262;  Morgan 
V.  McNeely,  120  Ind.  537;  Johnson 
V.  Cross,  128  Mass.  433;  Morris  v. 
Henderson,  37  Miss.  492;  Braw- 
ley  V.  Collins,  88  N.  Car.  605;  Den 
V.  Payne.  5  Hayw.   (Tenn.),  104. 

8  Morgan    v.    McNeely,    126    Ind. 


LAW    OF    WILLS.  ^"^ 

was  one  of  personalty  only.^  So  the  insertion  of  words  which 
are  especially  suitable  for  passing  real  estate  may  show  that 
the  words  referred  to  realty  only.''' 

A  gift  of  all  testator's  property,  which  he  may  have  at  his 
death,  passes  his  personal  estate  of  every  kind,  no  matter  what 
its  source ;  thus  it  includes  the  proceeds  of  lands  subsequently 
sold  by  testator.' ' 

A  bequest  of  all  the  money  arising  from  a  sale  of  testa- 
tor's ''stock"  and  "loose  property"  was  held  to  pass  the  entire 
personal  estate,  including  money  and  negotiable  instru- 
ments.-^^ 

§478.     Effects. 

The  word  "effects"  is  one  used  prima  facie  to  denote  per- 
sonal property  only.  A  bequest  to  one  person  of  such  "goods, 
books,  clothing,  furniture,  etc.,  that  he  may  desire"  and  giving 
to  others  "the  balance  of  the  personal  effects,"  passes  to  the 
last-named  beneficiaries  the  entire  personal  property  of  testator 
except  such  as  is  taken  by  the  first  beneficiary.'s 

The  context,  however,  may  show  that  testator  did  not  intend 
by  the  word  "effects"  to  pass  the  whole  of  his  personalty.  This 
intention  may  be  sho^vn  by  the  words  descriptive  of  the  prop- 
erty with  which  "effects"  is  associated.'^  Thus  a  gift  of  "all 
my  jewelry,  wearing  apparel  and  personal  effects"  was  held  not 
to  include  furniture  and  pictures.^^  N'or  does  a  gift  of  "house- 
hold furniture  and  effects"  pass  jewelry.^^ 

Testator's  intention  to  restrict  the  meaning  of  "effects"  may 
also  be  shown  by  other  directions  in  his  will.  Thus  a  pro- 
vision for  the  sale  of  testator's  "effects"  was  held  to  show  that 
testator  used  "effects"  as  including  only  property  which  was 

sPeirsol   V.    Roop,   56   N.   J.   Eq.       212;  In  re  Jupp   (1891),  P.  D.  300. 

ygg  14  Rawlings   v.   Jennings,    13   Ves. 

10  Dunham  v.  Marsh,  52  N.  J.  Eq.       Jr.   39 ;   hi  re  Reynolds,   124  N.  Y. 


256,  831 


388. 


11  Simmons    v.    Beazel,    125    Ind.  i^  Lippincott's  Estate,  173  Pa.  St. 


362. 


368. 


12  Fry  V.  Shipley,  94  Tenn.  252.  "  Northey  v.  Paxton,  60  L.  T.  30. 

i8Reimer's    Estate,    159    Pa.    St. 


566  LAW     OF     WILLS, 

in  fact  subject  to  sale.     Hence  money,  credits  and  the  like 
were  excluded.'^ 

While  the  word  "effects"  prima  facie  applies  to  personalty 
only,  it  is  not  a  word  of  rigid  meaning,  and  may  be  used  so 
as  to  include  realty  if  the  context  shows  testator's  intention 
so  to  use  it.^*  Thus  a  devise  in  which  the  article  of  the  gift 
is  referred  to  as  "furniture,  goods  chattels  and  effects"  in  one 
place,  and  in  another  as  "furniture  and  moneys  or  any  prop- 
erty," was  held  to  pass  testator's  real  estate.  In  this  case,  how- 
ever, any  other  construction  would  have  left  the  testator  intes- 
tate, practically,  as  to  all  his  property.^ ^ 

§479.     Surplus. 

A  gift  of  the  "surplus"  of  testator's  property  may  include 
real  estate  as  well  as  personal  property.^^ 

§480.     Description  of  property  by  reference  to  its  source. 

A  devise  or  bequest  is  often  made  of  property  simply  de- 
scribed as  property  which  testator  has  inherited  from  a  given 
source.  Such  gifts  include  not  only  such  property  as  remains 
in  specie  but  the  proceeds  arising  therefrom,  whether  the  sale  is 
had  in  the  course  of  administration  of  the  first  estate  or  by 
testator  after  the  property  comes  to  his  hand.^^ 

Where  the  gift  is  described  as  the  estate  which  testatrix  is 
"to  inherit  as  my  portion  after  my  father's  death,"  this  can 
not  be  taken  to  mean  simply  the  estate  which  testatrix  inher- 
ited from  her  father ;  but  it  will  apply  equally  well  to  an  estate 
which  she  had  already  inherited  from  her  mother,  but  which 
she  had  no  power  to  distribute  until  after  her  father's  death.^- 

17  Goods  of  O'Loughlin,  L.  K.  2  20  Byrnes  v.  Baer,  86  N.  Y.  210; 
P.   &   D.    102.  Lamb    v.    Lamb,    131    N.    Y.    227; 

18  White  V.   Keller,   68   Fed.   796;  Chandler's  App.,  34  Wis.  505. 
Adams   v.    Akerlund,    168    111.    632;  21  Aydlett    v.    Small,    115    N.    C. 
Ruckle     V.    Grafflin,    86     Md.     627 ;  1 ;  Graham  v.  Knowles,  140  Pa.  St. 
Page  V.  Foust,  89  N.  Car.  447.  325 ;   Newman  v.  Clyburn,  40  S.  C. 

"Hall  V.  Hal]     (C.  A.),    (1892),  549. 

1   Ch.  361,  affirminsj    (1891),  3  Ch.  22  Graham  v.  Grugan,  132  Pa.  St. 

389;  White  v.  Keller,  68  Fed.  796;  79. 
Ruckle  V.  Grafflin,  86  Md.  627. 


LAW     OF     WILLS. 


567 


So  a  gift  of  such  property  as  came  to  testator  as  ''heir"  of 
his  brother's  estate  passes  such  property  as  he  had  received 
by  will  and  testament  of  such  deceased  brother  where  he 
took  nothing  as  heir.^^ 

§481.     Property  excepted  from  a  general  devise  or  bequest. 

If  testator's  intention  is  clear  to  except  certain  specific 
pieces  of  property  from  a  general  devise,  his  intention  must  be 
enforced.^'*  Thus  a  devise  of  all  testator's  real  estate,  except- 
ing any  lots  which  had  been  leased  or  sold  by  testator  before 
the  execution  of  the  will,  does  not  pass  a  lot  so  leased,  although 
shortly  after  the  execution  of  the  will  testator  purchased  the 
leasehold  interest  in  such  lot.^^ 

So  a  bequest  of  testator's  account  books  and  the  proceeds  of 
all  collections  which  can  be  made  from  the  accounts  of  a  cer- 
tain business,  does  not  pass  accounts  against  testator's  relatives 
where  it  expressly  provides  that  the  accounts  against  them  are 
"to  be  treated  as  memorandums  only,  and  not  included  in  the 
above  bequest."  ^^ 

§482.     Construction  of  devises  of  land. 

At  one  time  it  was  held  that  a  devise  of  land  prima  facie 
passed  a  life  estate  only.  But  under  our  modern  rule  pro- 
viding that  a  devise  of  land  shall  pi'ima  facie  pass  all  of  tes- 
tator's interest  therein,  a  devise  of  testator's  lands  will  pass 
remainders  and  reversions  therein^'^  even  where  the  devise 
is  contained  in  a  general  residuary  clause.^^ 

So  a  devise  to  one  of  the  "shares"  given  by  will  to  two 

23  Shapleigh  V.  Shapleigh  (N.  H.),  26  Johnson  v.  Johnson,  92  Tenn. 
44  Atl.   107.  559  ;  23  L.  R.  A.  179. 

24  Dickinson  V.  Dickinson,  138  111.  27  Blakely  v.  Quinlan  (Ky.), 
541,  affirming  36  111.  App.  503;  1897;  39  S.  W.  513;  Woodman  v. 
Chase  v.  Stoekett,  72  Md.  235;  Woodman,  89  Me.  128;  Watson  v. 
Brady  v.  Brady,  78  Md.  401;  Red-  Watson,  110  Mo.  164;  Brown  v. 
ford  V.  Redford,  45  Minn.  48;  John-  Boyd,  9  W.  &  S.  123;  Drew  v.  Wake- 
son   V.   Johnson,   92   Tenn.    559;    23  field,  54  Me.  291. 

L.   R.   A.   179.  28Reid  v.  Walbach,  75  Md.  205; 

25  Chase  v.  Stoekett,  72  Md.  235.      High's  Estate,  136  Pa.  St.  222. 


668  LAW     OF     WILLS. 

others  carries  the  contingent  remainders  given  by  will  to  those 
two  as  well  as  the  estate  in  possession.^^ 

A  general  devise  of  land  will  pass  real  estate  which  testator 
had  contracted  to  purchase,  though  at  the  time  of  the  execution 
of  the  will  he  had  not  acquired  the  legal  title  thereto.^^ 

Under  a  devise  of  real  estate,  whether  specifically  described 
or  embraced  in  a  general  disposition  of  property,  real  es- 
tate belonging  to  testator  which  he  has  contracted  to  convey, 
will  pass  subject,  of  course,  to  the  rights  of  the  purchaser  to 
enforce  specific  performance  of  the  contract.^ ^  But  if  the  pur- 
chaser completes  the  contract,  the  devisee  of  the  realty  can 
not,  by  virtue  of  the  devise  to  him,  enforce  payment  to  him- 
self of  the  purchase  price.^^ 

Where  testator  devises  certain  real  estate,  and  before  his 
death  sells  such  realty  without  receiving  the  entire  purchase 
money,  it  does  not  ordinarily  pass  under  a  devise  of  realty.^^ 
Testator  may,  however,  indicate  his  intention  that  the  pur- 
chase price  in  such  case  shall  pass  to  the  devisee  of  the  land, 
and  such  intention  will,  of  course,  be  enforced.^"* 

Thus  where  testator  leased  the  realty,  with  an  option  of  sale 
upon  the  same  day  that  he  republished  his  will,  it  was  held 
that  these  ^acts  show  that  testator  intended  the  purchase 
price  of  the  realty  to  pass  to  the  devisee.^^ 

In  some  exceptional  cases  money  may  pass  under  a  devise 
of  land.  These  cases  arise  where  the  money  is  impressed  with  a 
trust  under  which  it  must  be  converted  into  land.  In  most 
cases  the  money  has  further  arisen  from  the  sale  of  the  land.^*^ 
But    a    devise   of   land   in   a   specified   county   will  not   pass 

29  Eisiminger    v.    Eisiminger,    129  Frick  v.  Frick,  82  Md.  218  ;  Rogers 

Pa.    St.    564.  V.    Bayley,   —   Md.   —    (1896);    35 

soAtcherly    v.    Vernon,    10    Mod.  Atl.   5S. 

518:  Gist  v.  Robinet,  3  Bibb.   (Ky.),  34 /„,  re  Pyle   (1895),  1  Ch.  724; 

2;  Smith  v.  Jones,  4  Ohio,  116.  13    Rep.    396. 

3iBoganv.  Hamilton,  90  Ala.  454;  35 /„  re  Pyle   (1895),  1  Ch.  724; 

Chadwick  v.  Tatem,  9  Mont.  354.  13  Rep.  396. 

32Atwood    V.    Weems,    99    U.    S.  36  Duke  of  Cleveland's^  Estate   (C. 

183;  Jackson  v.  Delancey,  13  Johns.  A.),   (1893),  3  Ch.  244;  In  re  Low- 

(N.  Y.),538.  man    (C.   A.),    (1895),   2   Ch.    348; 

33Lawes  v.  Bennett,  1  Cox.  167;  Basset  v.   St.   Levan,    13   Rep.   235. 


LAW     OF     WILLS.  569 

money  which  is  to  be  converted,  into  land  anywhere  in  the 
country,  and  not  necessarily  in  the  county  named.^'^ 

§483.     Mortgages. 

A  devise  of  testator's  land  in  general  terms  does  not,  how- 
ever, pass  his  interest  in  mortgages  which  he  holds  upon  land, 
unless  the  context  of  the  will  clearly  shows  that  such  mort- 
gages were  included  in  such  devise.^^ 

Nor  does  a  devise  of  the  "real  estate"  which  came  to  testa- 
trix from  her  son  include  land  which  she  acquired  by  the  fore- 
closure of  mortgages  bequeathed  to  her  by  her  son.^^ 

But  a  devise  of  specific  realty  of  which  testator  is  mort- 
gagee will  show  testator's  intention  to  pass  the  mortgage  by  that 
description.^^ 

§484.     Effect  of  reference  to  a  plat. 

Where  testator  devisee  land,  described  by  reference  to  a 
certain  j)lat,  and  testator  does  in  fact  own  the  land  thus  re- 
ferred to,  the  devisee  must  ordinarily  abide  by  the  description 
of  the  lot  devised  which  testator  has  adopted  by  referring  to 
the  plat,  and  such  devisee  can  not  claim  a  greater  quantity 
by  alleging  a  mistake  in  this  plat.^^  This  rule  applies  where 
the  will  describes  land  by  reference  to  streets  as  laid  out,  which 
have  not  been,  in  fact,  laid  out,  and  the  lot  of  land  is  limited 
by  such  description.^^ 

But  where  a  lot  was  cut  in  two  by  a  street  and  devisee  had 
occupied  the  part  on  one  side  of  the  street,  a  gift  to  him  of 
tlie  lot  by  number,  describing  it  as  the  lot  on  which  he  resides, 
was  held  to  pass  only  the  part  on  that  side  of  the  street.^ ^ 

37  Duke  of  Cleveland's  Estate   (C.  4o  Woodlioiise      v.      Meredith,      1 

A.),    (1893),  3  Ch.  244.  Mer.  450. 

38 /rt  re  Clowes    (C.  A.),   1893,   1  4i  Finelite  v.   Sinnot,    125   N.   Y. 

Ch.  214;   Hollis  V.  Hollis,  84  Me.  96;  683;   St.  Margaret's  Hospital  v.  Pa. 

Martin    v.    Smith.    124    Mass.    Ill;  Company,   158  Pa.  St.  441. 

Marshall   v.    Hadley,    50   N.   J.   Eq.  42  St.  Margaret's  Hospital  v.  Pa. 

547;    Webster   v.   Wiggin,   19   R.   I.  Company,   158   Pa.   St.   441. 

73;  28  L.  R.  A.  510.  43  Hammel    v.    Palmer,    12    Ohio 

39  Coles  V.  Coles,  —  N.  J.  Eq.  —  C.  C.  184. 
(1897);    37   Atl.    1025. 


570 


LAW     OF     WILLS. 


Where  there  was  a  gift  for  life  of  the  house  and  lot  where 
testator  resided  "being  parts  of  lots  jSTos.  15  &  16,"  and  sub- 
sequently in  the  will  testator  gave  to  his  daughter  in  fee  "the 
same  lot  numbered  15  so  devised  to  my  said  wife,"  it  was 
held  that  the  reference  to  the  same  property  devised  to  the  wife 
was  sufficiently  clear  to  pass  the  house  and  lot,  in  spite  of  the 
omission  of  one  of  the  lot  numbers  in  the  second  gift.^^ 

A  devise  of  "the  house  and  lot  of  land  situate  on  the  north- 
westerly side"  of  the  street,  was  held  to  pass  two  lots  and  a 
double  house  where  testator  had  bought  it  as  one  tract.'*^ 

§485.     Devise  by  metes  and  bounds. 

Where  testator  devises  a  specific  tract  properly  described, 
and  further  refers  to  it  as  containing  a  certain  number  of 
acres,  such  will  passes  only  the  land  thus  described,  and  is  not 
a  devise  of  the  number  of  acres  therein  named."^^  And  this 
rule  applies  whether  the  specific  tracts  contain  more  acres 
than  the  number  indicated,^'^  or  fewer.* 

This  rule  applies  even  where  the  addition  of  an  adjoining 
tract  undisposed  of  by  will  would  make  out  the  number  of 
acres  devised.'*^ 

A  gift  of  real  estate  within  certain  described  boundaries 
passes  all  of  testator's  property  within  those  limits;'*^  and 
where  a  tract  is  divided  by  metes  and  lx>unds,  but  the  part  to 


*•*  Groves  v.  Culph,  132  Ind.  186. 

45  Webb  V.   Carney     (N.  J.   Eq.), 
1896;    32   Atl.   705. 

46Higgms  V.  Gwenn,  100  111.  554 
Priest  V.  Lackey,  140  Ind.  399 ;  Gun 
diff  V.  Seaton,  Ky.  (1899),  49  S 
W.  179;  Hobbs  v.  Peyson,  85  Me 
498;  Pickett  v.  Leonard,  104  N.  C 
326 ;  Portland  Trust  Company  v 
Beatie,  32  Or.  305;  Jones  v.  Quat 
tlebaum,  31  S.  C.  606;  Oldham  v, 
York,  99  Tenn.  68. 

47Cundiff   V.    Seaton,   —   Ky.   ~ 
(1899)  ;  49  S.  W.  179. 

*  Pickett   V.   Leonard,    104   N.   C. 
326:    Portland    Trust    Company  v. 


Beatie,  32  Or.  305;  Jones  v.  Quat- 
tlebaum,  31  S.  C.  606;  Oldham  v. 
York,  99  Tenn.  68. 

So  where  testator  intends  to  dis- 
pose of  an  entire  tract,  but  by  mis- 
take as  to  the  number  of  acres  in 
the  tract  the  aggregate  number  of 
acres  given  to  the  devise  is  less  than 
the  entire  tract,  the  surplus  acreage 
must  be  divided  pro  rata  among  the 
other  devisees  of  such  tract.  Ben- 
nett V.  Simon,  152  Ind.  490;  Porter 
V.  Gaines,   151  Mo.  560. 

48  0Mham  v.   York,  99   Tenn.   68. 

49  Chace   v.    Gregg,    88    Tex.    552. 


LAW    OF    WILLS.  571 

be  given  to  beneficiary  is  not  described  with  certainty,  it  may 
be  rendered  certain  where  the  remaining  clauses  of  the  will 
dispose  of  the  rest  of  such  tract.^'* 

§486.     Unimproved  real  estate. 

A  devise  of  ^'unimproved"  real  estate  does  not  pass  realty 
purchased  by  testator  to  be  platted  into  city  lots  on  which  are 
three  dwelling  houses  and  which  is  leased  out  by  testator,^  ^  But 
real  estate  does  not  cease  to  be  "unimproved"  because  it  is 
leased  to  a  tenant  who  has  erected  buildings  upon  such  realty, 
which  buildings,  in  law,  remain  tenant's  personal  property.^ ^ 

§487.     Effect  of  mistake  in  description  of  real  estate. 

It  not  infrequently  happens  that  a  testator  devises  land  by  a 
description  which  is  correct  in  some  respects  and  erroneous 
in  others.  This  most  frequently  happens  where  he  attempts 
to  describe  the  land  devised  by  a  reference  to  its  location  in 
a  given  county,  or  its  lot  number  in  a  given  plat,  or  its  location 
in  a-  specified  section  of  a  government  survey.  The  general 
principles  which  control  the  effect  of  such  mistakes  are  well 
settled.  Upon  the  application  of  these  principles  of  particu- 
lar states  of  fact  there  is  a  wide  divergence  of  authority. 
Practically  all  the  courts  agree  that  if,  after  the  false  descrip- 
tion or  part  of  a  description  is  discarded,  there  remains  in 
the  devise  language  sufiiciently  full  and  accurate  to  identify 
the  subject  of  the  gift  with  sufficient  certainty,  the  property 
thus  indicated  will  pass ;  if,  on  the  other  hand,  when  the  false 
description  is  eliminated  from  the  will  there  is  not  enough  left 
to  afford  a  basis  for  identifying  the  subject  of  the  gift,  nothing 
can  pass.^^     The  difficulty  is  in  determining  what  is  a  suffi- 

50  Dun  ford  v.  Jackson,  —  Va.  —       111.   341;     Pocock   v.   Redinger,    108 

(1896)  ;  22  S.  E.  853.  Ind.  573;   Cleveland  v.  Spilman,  25 
siEobb  V.  Robb,  173  Pa.  St.  620.       Ind.  95;   Groves  v.  Culph,   132  Ind. 

52  Coles  V.  Coles,  —  N.  J.  Eq.  —       186;   Covert  v.  Sebern,  73  lo.  564; 

(1897)  ;    37   Ail.    1025.  Christy  v.  Badger,  72  lo.  581;  Eck- 

53  Patch  V.  White,  117  U.  S.  210;  ford  v.  Eckford,  91  lo.  ,54;  26  L.  R. 
Whitcomb  v.  Rodman,  156  111.  116;  A.  370;  Thomson  v.  Thomson,  115 
28   L.   .R.   A.   149 ;   Allen  v.  Bowen,       Mo.  56. 

105  111.  361;  Decker  v.  Dedker,  121 


572  LAW    OF    WILLS. 

cient  description  of  the  real  estate  intended  to  be  conveyed 
after  the  false  description  is  stricken  out. 

If  the  will  describes  the  property  by  reference  to  the  person 
from  whom  the  testator  acquired  it,'^'*  or  by  its  location  with 
reference  to  well  known  natural  objects,^^  or  by  reference  to  the 
name  which  popularly  attaches  to  the  property ,^^  the  fact  that  a 
further  description  contains  an  erroneous  lot  number,  or  a  ref- 
erence to  a  wrong  part  of  a  government  survey,  does  not  avoid 
the  valid  and  accurate  description  already  given.^'^  So  where 
a  testator  showed  in  his  will  a  clear  intention  of  disposing  of 
the  whole  of  his  real  estate,  as  where  he  devises  "my  real 
estate'"  or  "all  my  lands,''  the  addition  of  a  further  and  more 
particularly  erroneous  description  does  not  avoid  the  effect  of 
the  general  description.^^ 

Thus  a  devise  of  land,  correctly  describing  it  by  metes  and 
bounds,  is  not  avoided  by  an  erroneous  statement  in  a  will  that 
it  adjoins  lands  of  the  devisees  f^  nor  was  a  devise  of  the  only 
house  and  lot  belonging  to  testatrix  avoided  by  the  fact  that 
she  described  it  as  being  in  a  named  city  when  it  was  in 
fact  situated  in  a  suburb  of  said  city.^^ 

And  a  devise  of  a  tract  of  land  for  which  devisee  "has  a 
quitclaim  deed  of  me,  and  that  he  now  occupies,"  passes  only 
land  which  has  been  quitclaimed  by  the  testator  and  is  also 
occupied  by  devisee,  and  does  not  pass  another  tract  of  land 
ocupied  by  devisee  but  never  quitclaimed.^^ 

"If,  after  the  false  description  is  s^  Emmert  v,  Hayes,  89  111.   11; 

discarded,  there  remains  in  the  de-  Riggs  v.  Myers,  20  Mo.  239;  Winkley 

vise  language  sufficient  to  direct  to  v.   Kaime,   32   N.   H.   268 ;    Allen  v. 

the  identification  of  the  subject  with  Lyons,  2  Wash.  C.  C.   ( U.  S. ) ,  475. 

sufficient   certainty,   an    estate   will  58  Priest  v.  Lackey,  140  Ind.  399 ; 

pass  thereby.     But  when  false  Ian-  Pocock  v.  Redinger,   108   Ind.   573: 

guage  is  eliminated,  and  nothing  re-  Black    v.    Richards,    95    Ind.    184 : 

mains  directing  inquiry  which  may  Judy  v.  Guilbert,  77  Ind.  96;  Cleve- 

result  in  discovering  the  true  subject  land  v.   Spilman,  25  Ind.  95. 

of  the  devise,  it  is  void."     Christy  59  Wales   v.   Templeton,   83   Mich. 

V.   Badger,   72   lo.   581;    Eckford  v.  177. 

Eckford,  91  lo.  54.  6o  Hawkins    v.    Young,    52    N.    J. 

54  Winkley    v,    Kaime,    32    N.    H.  Eq.  ,508 :  28  Atl.  511. 

268.  eiOgsbury  v.  Ogsbury,  115  N.  Y. 

55  Riggs  v.  Myers,  20  Mo.  239.  290. 
56Emmert   v.   Hayes.    89   111.    11. 


LAW    OF    WILLS. 


57g 


Where  the  real  property  devised  is  correctly  described, 
the  fact  that  testator  did  not  describe  the  nature  of  his  interest 
correctly  does  not  prevent  the  property  thus  described  from 


passing.**^ 

Where  a  tract  of  land  is  given  to  two  or  more  in  fixed 
proportions,  and  testator  does  not  attempt  to  set  off  the  por- 
tions by  metes  and  bounds,  the  division  of  the  property  must 
be  made  according  to  value  and  not  according  to  the  number  of 
acres.  This  rule  holds  good  even  where  testator  provides  that, 
in  the  division,  the  part  of  the  farm  containing  the  home- 
stead buildings  must  be  given  to  a  designated  beneficiary.*^^ 

A  devise  of  real  estate  may  be  so  vague  and  uncertain  as 
to  pass  no  interest.  This  usually  occurs  where  the  property 
has  not  been  referred  to  by  ownership  or  by  location.  Thus 
where  testator  directed  his  executors  to  purchase  "a  tract  of 
land  at  or  near  the  residence"  of  beneficiaries  for  their  use  for 
life,  it  was  held  that  such  a  devise  was  too  vague  to  pass  any 
interest  in  any  real  estate.^^ 

Up  to  this  point  the  authorities  are  comparatively  unani- 
mous. The  conflict  of  authority  arises  in  cases  where  there  is 
no  sufficient  description  of  the  property,  by  reference  to  its 
location,  or  its  ownership,  outside  of  the  description  which  is 
in  part  erroneous.  In  these  cases  the  question  presented  was 
whether  the  courts  can  reject  a  part  of  the  description,  such 
as  the  lot  number,  or  the  description  of  a  quarter  section,  and 
treat  the  rest  of  the  description  as  the  plat,  survey,  or  addition 
to  the  city,  or  the  number  of  the  section,  township  and  range, 
as  sufficient  to  pass  the  real  estate.  The  greater  weight  of 
modern  authority  probably  is  that  where  the  will  is  so  worded 
as  to  show  testator's  intention  to  pass  his  lands  in  the  given 
plat  or  section  and  the  like,  the  description  of  the  particular 
lot,  quarter  section  and  the  like  may  be  rejected  if  erroneous.^^ 

62  Hatch  V.  Ferguson,  68  Fed.  Rep.  64  Taylor's  Estate,  81  Cal.  9. 
43;   3,3  L.  R.  A.  759;   Pearson's  Es- 
tate, 99  Cal.   30;   In  re  Smith,   154  ss  Doughten    v.   Vandever,    5   Del. 
Mass.  479.  Ch.  51 ;   Whitcomb  v.  Rodman,   156 

esMeClure  v.   Taylor,    109   N.   C.  111.   116:    28   L.  R.   A.   149    (tacitly 

641;  Sanderson  v.  Bigham,  40  S.  C.  overruling   Single  v.   Volz,    142   111. 

501.  214,   16  L.  R.   A.  321)  ;    Seebrock  v. 


674  LAW     OF     WILLS. 

In  some  cases  the  courts  refuse  to  allow  any  part  of  the 
description  by  lot  number  or  section  to  be  varied  or  rejected, 
even  though  partial  intestacy  should  result.®^  Where  testator 
did  not  describe  the  land  devised  as  belonging  to  him,  and  he 
did  not  own  the  quarter  section  devised,  but  owned  another 
quarter  section  in  the  same  section,  it  was  held  that  such  other 
quarter  section  could  not  pass  under  the  devise.^''^  So  a  devise 
of  a  ''small  farm  in  Wayne  County,  Iowa,  near  the  Missouri 
line,"  was  held  not  to  pass  a  small  farm  in  Lucas  County  un- 
disposed of  by  will,  though  testator  owned  no  land  in  Wayne 
County.^^ 

§488.     Description  of  realty  by  popular  name. 

Since  the  courts  endeavor  to  enforce  the  intention  of  testa- 
tor whenever  the  same  can  be  ascertained  by  the  will,  it  is  not 
necessary  that  the  estate  devised  by  wall  should  be  described 
with  the  accuracy  necessary  in  the  case  of  a  deed.  Devises  are 
constantly  upheld  where  the  testator  has  devised  real  estate 
by  its  popular  name  without  any  attempt  at  formal  descrip- 

Fedawa,    33    Neb.    413;     Patch    v.  quarter  of  the  southeast  quarter  of 

White,  117  U.  S.  210.     (An  extreme  such    section,    being   the   only    land 

case    where    a     devise    of     Lot    6,  owned   by   testator.) 

Square  403,  in  a  given  town  was  held  Stewart  v.   Stewart,   96   la.    620; 

to   pass   Lot    3,    Square   406,    being  65   N.    W.    976.      (A   devise   of   the 

the   only  lot  owned   by   testator   in  "south  half  of  the  northeast  quar- 

that   town   otherwise  undisposed   of  ter"  of  a  section  held  to  devise  the 

by   will.)      Eckford   v.    Eckford,   91  south  half  of  the  southeast  quarter 

To.  54 ;  26  L.  R.  A.  370 ;  Merrick  v.  of  that  section,  the  latter  property 

Merrick,  37  O.  S.  126.  not  being  devised,  and  testator  not 

Huffman  v.  Young,   170  111.  290.  owning  the   first  tract.)      Zirkle  v. 

(A  devise  "off  the  east  side  of  the  Leonard,     61     Kan.     636;    60    Pac. 

north-east  quarter"  of  a  certain  sec-  318;    Moreland    v.    Brady,   8    Oreg. 

tion  held  to  pass  the  same  number  303. 

of  acres  off  the  north  side  of  such  66  Bingle  v.  Volz,  142  111.  214;  16 
section,  testator  owning  the  latter  L.  R.  A.  331:  (ignored  in  Whit- 
tract,  and  not  the  former. )  comb    v.    Rodman,    156    111.    116); 

Rook  V.  Wilson,  142  Ind.  24.     (A  Hull   v.   Hull,   9   Ohio   Dec.    19. 

devise  of  the  "southwest  quarter  of  67  McGovern     v.     McGovern,      75 

the   southeast   quarter"   of   a   given  Minn.  314. 

section  held  to  devise  the  northeast  sa  Christy  v.  Badger,  72  lo.  581. 


LAW    OF    WILLS. 


575 


tion.®^  And  such  general  descriptions  as  "all  the  property  I 
possess,"  or  ''the  residue  of  my  estate,"  and  the  like  are  suffi- 
cient to  pass  real  estate."^ 

So  a  devise  of  "mountain  lands,"^^  or  "upland,"'^^  is  suffi- 
ciently definite. 

A  devise  of  property  by  such  popular  name  includes 
the  entire  tract  Mdiich  is  generally  known  by  that  name,  and 
not  merely  the  smallest  portion  thereof  to  which  the  name 
might  be  applied,  nor  does  it  include  a  larger  tract  which 
might  come  under  a  general  designation.  Thus  a  devise  of  the 
'"old  mill  quarry"  includes  the  entire  tract  known  as  the 
quarry  property,  although  the  quarry  itself  formed  but  a  part 
thereof. '^^  A  gift  of  a  farm  by  its  popular  name  passes  only 
the  tract  known  by  such  name,  and  not  an  additional  tract  used 
at  times  in  connection  with  it,  but  not  spoken  of  as  a  part  of  it.'^^ 

A  devise  of  the  residence  occupied  by  the  testator  during 
his  lifetime  and  "premises  thereto  as  the  same  are  now  oc- 
cupied by  me,"  does  not  entitle  the  beneficiary  to  the  entire 
stable  and  coach  house,  but  only  to  so  much  as  actually  was 
used  by  the  testator.'^^  So  a  devise  of  the  "homestead"  in- 
cludes only  the  part  of  the  tract  of  land  used  by  testator  for 
residence  purposes,  and  not  a  building  on  another  part  of  the 
same  tract  leased  by  testator  for  business  purposes. '^^  A  devise 
of  the  "home  place  where  I  now  live,"  carries  only  the  farm- 


«9ln  re   Seal    (C.  A.)     (1894),   1  188  Pa.  St.  234;  Harris  v.  Dyer,  18 

Ch.    316;    Beers    v.    Narramore,    61  R.   I.   540. 

Conn.   13;   McAleer  v.   Schneider,  2  7i  Horneby  v.   Davis     (Tenn.  Ch. 

App.  D.  C.  461;  Myers  v.  Norman,  App.)    (1806),  36  S.  W.  159. 

Ky.   (1898),  46  S.  W.  214;  Hammel  72  Vandiver  v.  Vandiver,  115  Ala. 

V.   Palmer,    (1   Toledo   Legal   News,  328. 

301)  ;  12  Ohio  C.  C.  184.  73  Beers  v.  Narramoore,  61  Conn. 

70  Le    Breton    v.    Cook,    107    Cal.  13,    citing   and    following   Minor    v. 

410;    Rockwell   v.    Swift,    .i9    Conn.  Ferris,   22   Conn.   371;    Holbrook   v. 

289;    Taubenham  v.   Dimz,   125   111.  Bentley,  32  Conn.  502;   Peckhara  v. 

524,    affirming   20    App.    262;    Mor-  Lego,    57    Conn.    553. 

gan    V.    McNeeley,    126    Ind.    537;  74  Chaee  v.  Lamphere,  148  N,  Y. 

Eckford  v.  Eckford,  91  lo.  54  ;  Three  206. 

States   Lumber   Co.  v.  Rogers,   145  75 /n  re  Seal    (C.  A.)    (1894),   1 

Mo.    445;    Shumate   v.    Bailey,    110  Ch.  316. 

Mo.  411;  Darlington  v.  Darlington,  76  Smith  v.   Dennis,   163  111.   631. 
160  Pa.  St.  65;   Stevenson  v.  Scott, 


576  LAW    OF    WILLS 

house,  surrounding  enclosure  and  out-building  used  by  testator 
in  connection  therewith,   together   with   a   wagon   entrance.^  ^ 

It  i^  not  necessary  that  the  land  devised  by  its  popular  name 
should"  be  contiguous.  Separate  tracts  used  together  and 
known  by  the  name  used  by  testator  will  pass  under  such 
devised* 

A  devise  of  the  "old  homestead"  prima  facie  passes  the 
property  used  by  testator  as  a  .residence  at  the  time  of  the 
execution  of  his  will  and  thereafter  till  his  death,  although 
he  owned  another  tract  of  land  on  which  he  formerly  had 
livedJ^ 

A  devise  of  an  acre,  to  be  taken  oS  the  west  side  of  a  given 
tract  in  the  shape  of  a  square,  was  held  void  as  it  was  possible 
to  lay  off  any  number  of  such  tracts  along  the  west  line.^^ 

Burial  Ground.  This  tract  was  to  be  reserved  for  use  as 
a  private  burial  ground,  and  was  to  include  as  part  of  itself 
the  burial  ground  used  during  testator's  lifetime.  While  the 
reservation  of  the  whole  acre  was  invalid,  it  was  held  good 
as  to  the  tract  already  used  as  a  burial  ground.^^  But  a  de- 
vise for  the  improvement  of  a  "burial  lot,"  was  held  to  au- 
thorize the  executors  to  select  the  burial  lot  from  the  family 
burial  ground.®^ 

§489.     After-acquired  realty. 

As  has  been  stated  at  common  law,  a  testator  had  no  power 
to  devise  land  acquired  after  the  making  of  the  will.^^  Stat- 
utes were  subsequently  passed  in  most  jurisdictions  giving  a 
testator  power  to  pass  after-acquired  realty.  These  statutes 
are  not  retrospective  in  their  operation,  and  do  not  apply  to 
Avills  made  before  the  passage  of  such  statutes  where  the  testa- 
tor died  afterward.**^ 

In  wills  made  after  the  passage  of  these  statutes,  the  only 

77McKeough's    Estate    v.    McKe-  82  Joy   v.    Fesler,    67   N.   H.   257; 

oiigh,  69  Vt.  34,  41 ;  37  Atl.  275.  29   Atl.   448. 

Ts  Lord   V.   Simonson    (N.  J.),   42  §3  See  Sec.   142.     Dodge  v.  Galla- 

Atl.  741.  tin.    130   N.   Y.    117. 

79  Moore   v.    Powell,    95   Va.    258.  »*  Morgan    v.    Huggins,    42    Fed. 

soBdens  v.  Miller,   147   Ind.   208.  869;  9  L.  11.  A.  540. 

81  Edens  v.  Miller,   147   Ind.   ?^S. 


577 

LAW    OF    WILLS. 


question  involved  is  one  of  construction.  Has  the  testator  xnan- 
ifested  his  intention  to  dispose  of  after-acquired  real  estate 
with  sufficient  clearness?  The  statutes  on  this  subject  are  not 
identical,  and  may  be  roughly  grouped  under  two  heads. 

Statutes  of  the  more  liberal  class  substantially  provide 
that  after-acquired  property  will  pass  by  such  provisions 
of  the  will  as  would  pass  such  property  if  owned  at  the  time 
of  the  making  of  the  will.«^  Under  this  rule  a  devise  of  all 
the  estate  I  now  own  and  possess"  passes  after-acquired  prop- 
erty ««  and  a  general  gift  of  all  of  testator's  property,  or  a  re- 
siduary clause,  will  pass   after-acquired  property  «^ 

Even  under  these  statutes  a  gift  clearly  intended  to  apply 
only  to  realty  owned  at  the  date  of  the  will  does  not  pass 
after-acquired  realty.-  Thus  a  devise  of  "the  residue  of  my 
real  estate,  being  a  lot  of  land  adjoining"  a  described  tract, 
does  not  pass  after-acquired  realty  not  answering  this  descrip- 

tion  ^^ 

The  other  class  of  statutes  is  somewhat  less  liberal  in  its 
terms,  and  provides  that  testator  may  pass  after-acquired 
property  where  such  intention  clearly  appears  m  the  wii.. 
Under  such  statutes  a  residuary  clause  does  not  pass  after- 
acquired  real  estate.^*^ 

S5Hardenbergh  v.  Kay,  151  U.  S.       R.   A.    767:    Welborn   v.    To^vnsend. 

112;    McClaskey    v.    Barr,    54    Fed  '^f^^^^'V    Brewster,  86  Conr.. 

781-;    Woman's    Missionary    Society  ss  \\  heeler  v.  xivev.i,i    , 

V     Mead     131    111.    338;    Flummer-  177. 

Lt   V    Fhunmerfelt,   51    N.   J.   Eq.  -Wheeler  v.  Brewster,   68   Conn. 

432;    Jacob's    Estate,    140    Pa.    St.  17/. 

268-    11    L.    R.    A.    767;    Haley   v.  -Webb    v.    Archibold,    128    Mo^ 

f  /       '      -,  rp^^.    9m  299;  28  S.  W.  80 ; /n  re  Pearce,  20 

^tTl  y    V.    Gatfood,    74    Tex.  R.   I.    380;    Webster   v.   Wi..in,    19 

sbnaiey    v.  R    I    73;   28  L.  R.  A.  510;   Church 

''I;  Euckle  V.  Grafflin,  86  Md.  627 ;  v.  Warren  Mfg.   Co.,   14  R.  I.   539 ; 

Webb   V.    Archibald,    128   Mo.   299;  Lonllard  s   Petition,    16   I^-  /•   -54' 

Woman's     Missionary     Society     v.  Bedell    v.    Fradenburgh,    65    Mmn 

MeaT  1   1  111.  338  :  Morgan  v.  Mc-  361 ;  68  N.  W.  41.     Nor^does  a  gift 

Neele'y     126   Ind.   537;    Blackmore's  of    all    of    testator's    "belongings, 

Su  ceI;ion,  43  La.  Ann.  845;  Paine  even    though    coupled    with    a    sug- 

V    Forsaith,   84  Me.   66;   Flummer-  gestion   that   devisee   may   give  her 

felt   V    Flummerfelt,   51    N.   J.   Eq.  sister  a  certain  amount  ^f  f  ^^^^^^^^ 

4.32;  Lamb  V.Lamb,  131  N.Y.  227;  to    make    a    P^-^.^^^f^-    ^• 

Jacob's  Estate,  140  Pa.  268;   11  L.  Schneider,  2  App.  D.  C.  461. 


578  LAW     OF     WILLS. 

A  gift  of  all  testator's  ''real  estate"  has  been  held  sufficient 
to  pass  after-acquired  realty/^^  A  gift  of  the  "real  estate  I 
may  now  have  or  hereafter  may  acquire"  is  sufficient  to  show 
testator's  intention  to  pass  after-acquired  realty/^-  And  even 
where  the  will  specifically  describes  the  property  devised,  h 
may  still  appear  from  the  will  as  a  whole  to  be  testator's  inten- 
tion to  dispose  of  all  his  property.^^ 

Testator's  intention  to  pass  after-acquired  realty  must,  of 
course,  appear  on  the  will,  and  can  not  be  shown  by  extrin- 
sic evidence.^'* 

§490.     Gift  of  realty  at  fixed  valuation. 

A  gift  of  real  estate  to  one  ''to  be  valued  at"  a  certain  sum, 
is  an  ambiguous  disposition  of  property.  Where  testator  di- 
rects this  valuation  to  be  made  in  the  settlement  of  his  estate, 
and  there  are  other  words  showing  an  intention  that  the  prop- 
erty shall  pass  by  will,  it  is  held  that  the  direction  for  val- 
uation merely  shows  how  to  estimate  the  value  in  determining 
the  shares  of  the  estate  that  each  beneficiary  receives.^^  But 
where  there  is  no  other  language  tending  to  show  the  intention 
of  testator  to  devise  the  property,  it  is  held  that  such  a  gift 
gives  to  the  parties  named  merely  an  option  to  purchase  the 
land  at  such  price  from  the  residuary  devisee.^ "^ 

§491.     Gifts  of  rents. 

Eents,  both  in  the  technical  common  law  sense  and  in  the 

siPruden    v.    Pruden,     U    0.    S.  92  Hale  v.  Aiidsley,  122  Mo.  316 ; 

251.     But  a  gift  of  "all  my  prop-  Applegate    v.    Smith,    31    Mo.    166; 

erty"   was   held   insufficient   to  pass  Liggatt  v.  Hart,  23  Mo.  127. 

after    acquired    realty;     McCall    v.  ■     93  Parrar  v.  Fallestine,  4  Ohio  C. 

Jones,  4  W.  L.  M.   627.     A  gift  of  C.  235. 

"all    my   other    property    consisting  s*  Banning  v.   Banning,   12   0.   S. 

of   horses,   cattle,   hogs,   money   ;  iid  437. 

effects    whatsoever"    was    held    not  95  Fleming  v.  Carr,  47   N.  J.  Eq. 

to   pass   after   acquired   realty ;    but  549. 

solely  on  the  ground  that  such  realty  96  Wyckoff  v.   Wyckoff,   49   N.  J. 

being  of  a  different  class  from   the  Eq.    344;    48   N.  J.   Eq.   113. 
property   enumerated   was   excluded 
by  such  enumeration.    Smith  v.  Hut- 
chinson, 61  Mo.  83. 


LAW    OF    WILLS.  *"*' 

popular  modern  sense,  form  a  very  important  item  in  many 
estates.^ ^     A  devise  of  rents  which  are  due  and  payable  in  the 
future  may  be  held  to  pass  with  it  the  reversionary  interest 
in  the  property,  especially  where  the  purpose  of  the  gift  as 
given  could  not  be  carried  out  from  the  accruing  rents  alone.^^ 
"^  A  bequest  to  testator's  wife- of  a  sum  equal  to  the  rental 
value  of  her  land  which  had  been  used  by  testator  in  his  life- 
time, means  the  rental  value  for  the  entire  time  testator  used 
it,  both  before  and  after  the  time  of  making  the  will.      It 
nieans  the  gross  rental  value  without  deducting  taxes  or  im- 
provements.^^    And  a  gift  of  rents  and  profits  includes  real 
estate  which  was  purchased  with  the  proceeds  of  these  rents.^^^ 
An  absolute  gift  of  the  income  of  realty,  in  the  absence  of 
anything  to  indicate  a  contrary  intention,  passes  the  realty.^  °^ 
Biit  a  gift  of  the  "profits  and  benefits"  of  certain  real  estate, 
followed  by  a  provision  for  the  sale  of  such  real  estate  at  a 
fixed  time,' shows  that  testator  did  not  mean  to  pass  the  fee.-^^- 
So  a  gift  of  the  income  of  personalty  without  any  limitation 
passes  the  personalty.^  ^^ 

It  is  held  in  some  jurisdictions,  further,  that  a  gift  of  the 
income  for  life,  or  an  absolute  direction  to  the  trustee  to 
pav  the  income  for  life,  gives  a  life  interest  of  a  legal  or  equit- 
able nature,  as  the  case  may  be,  in  the  property  from  which 
the  income  is  to  arise.^^^ 

A  devise  of  realty  does  not  carry  the  rent  of  such  realty 
from  the  last  rent  day  to  testator's  death,  even  though  under 
the  lease  it  was  not  payable  till  after  testator's  death.^^^ 

97  Ogle  V.  RejTiolds,  75  Md.  145;  102  Collier  v.  Grimesey,  36  0.  S. 
Gao-e    V.     Wood,     171     Mass.     465;       17, 

Brady  v.  Brady,  78  Md.  461.  i"3  Angell  v.  Springfield  Home  for 

98  Ogle  V.  Reynolds,  75  Md.  145;  Aged  Women,  157  Mass.  241: 
Alexander  v.  Paxson,  47  Pa.  St.  12.       Thomae  v.  Thomae   (  N.  J.  Ch.),  18 

99  Bush    V.    Couchman,   —   Ky.—       Atl.   355;   Hatch  v.  Bassett,   52  X. 
(1892);  17  S.  W.  1020.  Y.   359;    Collier  v.   Collier,   3  0.   S. 

100  Roe  V.  Vingut,  117  N.  Y.  204.       369;   Pendleton  v.  Bowler,  27  Bull. 

101  Baker    v.    Scott,    62    111.    86;       313. 

Bowen  v.    Swander,    121    Ind.    164;  io4  Sampson    v.    Randall,    72    Me. 

Hunt  V.  Williams.  126  Ind.  493.  600;  109;  Brombacher  v.  Berking,  50  N. 
Earle  v.  Rowe,  35  Me.  414 ;  Cassilly  J.  Eq.  251 ;  Monarque  v.  Monarque, 
V.  Meyer,  4  Md.  1 ;  France's  Estate,       80  N.  Y.   320. 

75  Pa    St.  220.  '  ^°''''  Anderson  v.   Richards,  99  Ky. 

661. 


580  LAW    OF    WILLS. 

§492.     Bequests  of  personalty — Furniture. 

In  passing  from  words  descriptive  of  realty  to  those  describ- 
ing personalty,  the  word  "furniture"  will  first  be  considered. 

A  bequest  of  "furniture"  was  originally  held  to  include  all 
property  used  in  connection  with  a  house  to  make  it  habitable 
and  reasonably  convenient  for  living  purposes.^  ^^  The  popu- 
lar meaning  of  the  word  "furniture"  has  undoubtedly  changed 
since  the  early  precedents  were  decided.  "Eurniture"  then 
meant  anything  used  to  furnish  a  house.  A  house  and  its  fur- 
niture was  equvalent  to  a  furnished  house.  This  meaning  of 
the  word  was  fixed  by  early  precedents,  and  is  still  retained 
by  many  courts.  Thus,  under  a  gift  of  "furniture,"  it  has  been 
held  that  china,^^'''  pictures  and  statuary,^  °*  gold  and  silver 
plate,^^^  ornaments,^  ^^  and  linen  for  '  household  use,  are  all 
included.^  ^^  But  it  does  not  include  money,^^^  or  securi- 
ties.113 

The  popular  meaning  of  the  word  today  is  narrower 
than  the  original  meaning,  though  its  limits  are  not  easy  to 
define.  "Furniture,"  in  popular  use,  includes  such  articles  as 
chairs,  tables,  desks,  and  the  like,  and  excludes  silverware, 
glass,  plate,  books,  pictures  and  other  similar  articles.  Some 
courts  have  gone  a  considerable  way  towards  adopting  the  mod- 
em meaning  of  the  word.  Thus  a  bequest  of  furniture  was 
held  to  include  carpets  and  cook  stove,  together  with  utensils 
used  in  connection  with  such  stove,  but  it  did  not  include  silver 
ware,  china,  glass  ware,  or  portraits.^ ^^  The  context  may,  how- 
ever, show  that  such  articles  were  included  under  the  heading 
of  furniture.  Thus  a  gift  of  all  the  furniture  in  the  house,  ex- 
cepting   family  portraits     and  silver    ware,     shows    that    the 

106  Cole  V.  Fitzgerald,  3  Russ.  301 ;  "o  Field  v.  Peckett,  29  Beav.  573. 

Manton    v.    Taboia,    54    L.    J.    Ch.  m  Endicott  v.  Endicott,  41  N.  J. 

1008.  Eq.  93. 

107  Field  V.  Peckett,  29  Beav.  112  Kelly  v.  Richardson,  100  Ala. 
573:  Endicott  v.  Endicott,  41  N.  J.  584:  In  re  Reynolds,  124  N.  Y.  388; 
Eq.  93.  Smith  v.  Jewett,  40  N.  H.  513. 

108  Cremorne  v.  Antrobus,  5  Russ.  ii3  Andrews  v.  Schoppe,  84  Me. 
312;  7  L.  J.  Ch.  88;  Richardson  v.  170;  Blackmer  v.  Blackmer,  63  Vt. 
Hall,  124  Mass.  228.  236. 

109  Stuart  V.  Bute,  11  Ves.  Jr.  n*  Ruffin  v.  Ruffin,  112  N.  C.  102 
657 ;  Nieholls  v.  Osborn,  2  P.  Wms. 

421. 


681 

LAW    OF    WILLS. 


testator  had  included  them  under  the  general  heading  of  fui- 
^ture  because  of  his  exception  thereof;  and  hence  china  and 
Mated  ware  will  pass  under  such  a  gift.'-     Articles  of  per- 
on  :  use,  such  as  I  gold  watch  and  chain,  do  -<>'  P--^;- 
gift  of  "household  furniture,  silver  ware,  musical  instrument 
Lks  and  pictures" ;  since  the  word  "furniture"  does  not  pnma 
Zl  iiicl  ide  a  watch,   and  the   words   associated     herewith 
show    that    only    articles    of    household    use    are    intended 
th  the'  hooks  pass  as  "furniture"  under  the  oWer  meaning  o 
the  word  has  always  been  a  matter  of  some  doubt.     Perhapo 
Z  leight  of  authority  is  that  "furniture '  does  not  pn^ 
facie  include  books,-  but  that  slight  i-lications  f«>in  ^h 
context  that  testator  intended  books  to  pass  as    "^/^ 
be  sufficient  to  give  that  effect  to  the  word.        Under  the 
^ewer  meaning  of  the  word,  books  are  clearly  excluded. 

§493.     Household  goods. 

"Household  Goods"   is   a  term  of  substantially   the   same 
meaning  as  "furniture,"  though  of  somewhat  wider  scope.^^^ 
Thus  coal  and  a  shot  gun  may  pass  as  "househo  d  goods. 
Jewelry  and  clothing  do  not,  on  the  other  hand,  pass  under 
of  gift  of  "household  goods  and  effects."'*' 

§494.     Personal  property  described  by  its  location. 

A  very  interesting  question  is  presented  by  gifts  of  all  the 

-     furniture  and  personal  property  in  a  house  when  testator  has 

stored  his  money,  notes,  securities  and  other  choses  in  action 

therein.     A  gift  of  "all  that  therein  exists"  is,  of  oourse.^broad 

enough  to  pass  money  contained  in  a  safe  m  the  house.  -    But 

.»  Chase  T.  Stockett,  72  Md.  235.      S.    514 :    Carnagy    v.    Woodcock     2 
...rorter  V.  Tourney,  3  Ve.  Jr.      Munf.  ,Va.,,  ^^^'-^^  ^^^^^^^  '"> ' 
311 .  Le  Farrant  v.  Spencer,  1  Ve,.      /»  re  Fra«r,  92  N^  Y^  239^ 

120  In  re  Frazer,  92  M.  i-  ^-i-f- 
^'n,  Ondey  v.  Anstruthev,  10  Beav.  -  Kimball's  Will,  20  E.  I.  (Part 

3)    619 
'"ns  Kuffln  v.  Ruffin,  112  N.  Car.  -=  Garcia  y  Perea  v.  Barela,  5  N. 


107. 

119  Pellew  V.  Horsford,  2  Jur.  N. 


M.  458;  23  Pac.  766. 


582  LAW    OF    WILLS. 

a  gift  of  ^'everything  the  house  contains"  was  held  to  be  so 
restrained  by  the  preceding  words  "household  eltects,  books, 
and  papers  of  value"  as  to  exclude  a  note.^^^  The  difficulty 
is  generally  presented  in  determining  whether  the  words  allied 
with  and  used  in  connection  with  the  general  words  do  not  so 
restrict  their  meaning  as  to  exclude  money.  Thus  it  was  held 
in  a  gift  of  ''all  the  furniture  and  personal  property  in  and 
upon  the  same  (building),  or  in  any  manner  connected  there- 
with," did  not  include  money  and  securities  situated  in  a  vault 
in  this  building.^  ^^ 

So  a  gift  of  household  goods,  furniture,  possessions  and 
other  goods  and  chattels  for  life,  did  not  pass  a  life  interest 
in  certain  promissory  notes,^^^  even  though  these  notes  were 
contained  in  the  house.^^^  And  a  gift  of  a  desk  and  its  con- 
tents was  held  to  pass  everything  situated  therein,  including 
negotiable  notes,  but  not  to  pass  the  contents  of  a  box  which 
contained  some  securities,  where  this  box  was  not  situated  in 
the  desk,  although  the  key  which  opened  it  was  found  there,^-'^ 
nor  real  estate,  the  deed  to  which  was  in  the  desk.^-^ 

A  bequest  of  household  goods,  furniture,  etc.,  upon  the  testa- 
tor's home  place,  includes  all  the  articles  corresponding  to 
that  description  upon  the  home  place,  whether  situated  in  the 
dwelling  house  or  in  other  buildings  used  in  connection  there- 
with ;^^^  but  a  gift  of  the  contents  of  the  "barns"  to  testator's 
wife    does  not  pass  cotton  stored  in   a  buggy-house.^ ^^ 

Where  a  farm  is  devised  with  all  the  "personal  property" 
on  such  farm  at  testator's  death,  it  is  held  that  growing  crops 
pass  by  such  a  bequest.-' ^^ 


123  Webster  v.  Wier,  .51  Conn.  569.  12s  Parrot    v.    Avery,    159    Mass. 

124  In  re  Reynolds,  124  N.  Y.  388 ;  594 ;  22  L.  R.  A.  153. 

to  the  same  etfect  is  Kelly  v.  Rich-  129  Blaekraer  v.  Blackmer,  63  Vt. 

ardson,  100  Ala.  584.  236. 

125  Andrews   v.    Schoppe,   84   Me.  i3o  Johnson  v.  Johnson,  48  S.  Car. 
170.  408;  26  S.  E.  722. 

126  Blackmer  v.  Blackmer,  63  Vt.  i3i  Dunford    v.    Jackson,    —    Va. 
236.  (1896),  22  S.  E.  853.     . 

127 /,i    re   Robson-  (1891),   2    Ch. 
559. 


LAW    OF    WILLS.  583 

A  bequest  of  crops  "growing  or  maturing"  upon  certain 
tracts  of  land  does  not  pass  corn  stored  in  cribs  upon  such 
land.i=^- 

§495.     Personalty  described  by  its  use. 

Under  a  bequest  of  "all  my  household  furniture  .  .  .  and 
other  articles  of  household  or  domestic  use  or  ornament," 
it  was  held  that  certain  orchids,  which  were  used  occasionally 
for  ornamenting  the  house  passed,  although  they  ordinarily 
were  not  kept  in  the  house  or  upon  the  premises;  but  other 
orchids  kept  in  the  sam^  place,  which  were  never  used  to  or- 
nament the  house  did  not  pass.^^^ 

A  bequest  of  articles  of  "personal  use  and  ornament"  in- 
cludes only  articles  coming  under  such  description,  and  does 
not  extend  to  all  personal  property;  hence,  it  does  not  in- 
clude a  sailing  yacht.^" 


134 


§496.     Money. 

A  bequest  of  "money"  will  prima  facie  pass  such  money 
as  was  in  testator's  possession  at  the  time  of  his  death,  or  is 
in  deposit  in  bank  subject  to  check.^^^  But  it  does  not  include 
money  deposited  in  a  savings  bank  not  subject  to  check,  an'l 
which  can  be  drawn  out  only  at  certain  times  in  compliance 
with  the  rules  of  the  bank;^^*'  nor  does  it  include  personal 
chattels  generally  ;^^'^  nor  does  it  include  land  which  testator 
has  ineffectually  attempted  to  dispose  of  by  oral  contract,  es- 
pecially where  there  is  money  on  hand  ;^^^  nor  does  it  include 
a  balance  not  drawn  out  of  a  partnership  of  which  the  de- 
ceased husband  of  testatrix  was  a  member  ;^^^  nor  securities 
and  obligations  of  others  o\\aied  by  testator.^ ^*^ 

132  Edwards  v.  Rainier,  17  O.  S.  216;  29  Atl.  638:  Beatty  v.  Lalor, 
597.  15  N.  J.  Eq.  108. 

133  In  re  Owen,  78  Law  T.  Rep.  i37  Levy's  Estate,  161  Pa.  St.  189. 
643.  138  Sweet   v.    Burnett,    136   N.   Y. 

134  Parry's  Estate,  188  Pa.  St.  33.  204. 

135  Manning  v.  Pureell,  7  De  Gex  i39  Levy's  Estate,  161  Pa.  St.  189. 
M.  &  G.  55;  Dowson  v.  Gaskoin,  2  i4o  Beales  v.  Crisford,  13  Sim. 
Keen     14.  592;  Smith  v.  Burch,  92  N.  Y.  228. 

130  Hancock    v.   Lyons,    67  ,N.    H. 


684  LAW     OF     Wil.l.S. 

However,  where  the  context  shows  that  the  word  "money" 
was  meant  to  apply  to  other  property,  such  as  securities,^ '*^ 
or  reversionary  interests  in  personalty,^ '^^  it  may  include  such 
property. 

Thus  a  gift  of  money  on  deposit  in  a  designated  bank  may 
pass  stock  in  such  bank  where  testator  owned  stock  to  the  value 
designated  in  the  will  but  had  no  money  on  deposit  there.^"*^ 

A  gift  of  "money"  may  even,  from  the  context,  include  in- 
terest in  realty.  ^"^"^ 

§497.     Stocks  and  bonds. 

Bequests  of  stocks  and  bonds  are  especially  likely  to  be 
couched  in  informal  language,  and  the  nature  of  the  subject 
of  the  gift  must  be  especially  regarded  in  determining  the 
meaning  of  the  will.  A  bequest  of  a  specified  number  of 
bonds,  or  all  of  testator's  stock,  will  include  bonds  or  stock 
owned  in  fact  by  testator  though  not  transferred  to  testator's 
name  upon  the  books  of  the  corporation.^ ^^  Where  the  amount 
of  stock  is  indicated  in  dollars,  it  passes  a  proportionate 
amount  of  the  given  stock  at  par,  irrespective  of  the  market 
value  of  the  stock  when  the  bequest  takes  effect.^'*'' 

The  context  may,  however,  modify  this  rule.  Thus,  where  the 
will  evidently  contemplated  an  equal  division  of  testator's 
property,  a  gift  of  a  certain  amount  of  money  to  testator's  son, 
providing  that  if  he  pleases  he  may  take  his  legacy  in  cer- 
tain bank  stock  at  "par  or  market  value,"  was  held  to  be  a 
gift  of  the  stock  at  the  market  value  only,  since  the  equality 
of  distribution  would  be  entirely  destroyed  if  it  were  esti- 
mated at  par.^^"^ 

"iMosse  V.   Cranfield    (1895),    1  143  Mosse  v.    Cranfield    (1895),    1 

Ir.  80 ;   Gillen  v.  Kimball,  34  O.  S.  Ir.  80. 

352;    Hinckley    v.    Primm,    41    111.  i**  Miller's    Estate,    48    Cal.    165. 

App.    759 ;    Fulkerson   v.    Chitty,    4  145  Angell  v.  Springfield  Home  for 

Jones   Eq.    244;    Dillard   v.   Dillard  Aged  Women,  157  Mass.  241;  Cum- 

(Va.)    (1899),  34  S.  E.  60.  ming's  Estate,  153  Pa.  St.  397. 

142  7n  re  Egan  (1899),  1  Ch.  688;  "6  Johnston's  Estate,  170  Pa.  St. 

08  Law  Journal  Ch.  N.  S.  307  ;  Prit-  177. 

chard    v.    Pritchard,    L.    E,.    11    Eq.  1*7  Tandy   v.    Cook,   — Ky. — ;    42 

Cas.  232.  S.   W.   741. 


585 

LAW     OF     WILLb. 


Where  the  testator  devises  the  stock  by  mdicaUng  the  num 
ber  of  shares,  such  bequest  is  usually  taken  htera  ly      Bvrt  u. 
I  recent  case  it  was  shown  that  a  testator  owned  stock  m  a 
lambarge  company,  to  which  company  he  had  sold  the  barge 
and  that  te  had  always  estimated  this  stock  as  cons.stxng  ot 
oLtwentieth  of  the  actual  number  of  shares  owned,  and      - 
timated  each  share  as  being  worth  twenty  times  what  it  ac- 
t™ily  was.    These  facts  were  admitted  to  show  the  meaning  of 
Iblest  of  a  specified  number  of  shares  i.  testator's  clul- 
dren   especially  L  view  of  the  fact  that  a  literal  construction 
of  the  Jill  would  leave  testator's  children  without  any  prop  r 
provision;  and  the  bulk  of  testator's  property,  consisting  of  the 
remaining  nine,een-t.ventieths  of  his  stock,  would  pass  under 

a  residuary  clause.  , 

Where  a  bequest  is  made  of  specified  stock  owned  by  tlie 
testator,  and  subsequent  to  the  making  of  the  .v^ll,  such  s^ock 
is  exchanged  for  other  stock  in  the  same  corporation,  it  is  he  d 
in  some  jurisdictions,  that  under  these  facts  the  converted 
stock  will  pass  by  the  bequest.  This  is  specially  provided  m 
England  by  statute.^^^ 

A  bequest  of  ''shares"  in  a  corporation  does  not,  howeve 
pass  debenture  stock -«  And  where  testatrix  bequeathed  all 
ihe  consols  standing  in  her  name  and  belonging  to  her  at  the 
time  of  her  death,  it  was  held  that  this  did  not  pass  consols 
which  were  purchased  under  order  of  the  court  ^as  an  invest- 
ment of  her  property  after  she  became  msane. 

In  view  of  the  maxim  noscitur  a  sociis,  a  bequest  of  notes, 
bonds,  stock  and  money  does  not  include  live  stock,  such  as 
horses  and  mules.^^^ 

Where,  from  the  entire  will,  testator's  intention  to  pass  a 
specified  block  of  stock  is  clear,  the  gift  is  not  i^f  ^;l-^^<ij;^ 
the  fact  that  the  name  of  the^  corporation  m  which  the  stock 
is  held  is  given  erroneously.^ ^^ 

...  0.des  V.  Marsh,  111  Mich.  168.      stock  i„  the  -P-""""  "--^^^•"J^. 

,..,»  „  Howell-Shepherd  (1894),      held  dche.ture  ^ -•;•     '»  «  ^'''"' 

3  Ch.  640 ;  64  Law  Jo„v„a,  Ch.  ,N.      ing^  ( 1806J  .^2  ^Ch.  ^364.^  ^  ^  ^^^^^ 

^•^'  ^^-         ^    ,  o.   Am    &  Eno-  i52Copehart  v.  Burrus,  122  N.  C. 

150  In  re  Bodman,  3o  Am.  &  i^n^-  i      ^     .     ^.„ 

CO.P  Ca.  585,    ,1801,     3  Ch.  13.       "» ■  - ^^r  ;.  De^.  1-  IB.  341. 

Contra,    where    testator    held    no  uetwei 


586  LAW     OF     WILLS. 

Where  testator  gave  his  interest  in  a  manufacturing  busi- 
ness to  his  wife  for  life,  what  was  left  at  her  death  to  go  to 
her  children,  it  was  held  that  the  organization  of  the  busi- 
ness as  a  corporation  did  not  destroy  the  rights  of  the  remain- 
dermen, but  that  their  interests  attached  to  the  stock  in  such 
corporation  which  represented  the  share  of  testator's  estate. -^^^ 

§498.     Notes  and  other  debts. 

A  bequest  of  a  debt,  which  is  described  by  indicating  the 
name  of  the  debtor  and  the  security  taken  for  the  debt,  passes 
the  debt,  although  the  amount  may  be  erroneously  stated.^  ^^ 

A  testator  had  deeded  land  subject  to  a  charge  of  $5,000, 
the  interest  payable  to.  himself  and  wife  for  life,  the  prin- 
cipal on  his  death  "to  those  entitled  thereto,  for  all  of  which 
a  bond  has  been  executed."  There  was  no  evidence  to  show 
that  the  bond  was  ever  given.  The  testator  by  will  made 
a  gift  of  the  bond.  It  was  held  that  the  indebtedness  passed 
under  the  gift.-^^''*^ 

Where  testatrix  had  received  the  greater  part  of  her  prop- 
erty from  her  husband  by  will,  and  in  her  will  she  bequeathed 
a  certain  amount  "in  addition  to  the  sums  owing  [the  benefi- 
ciary] from  my  late  husband's  estate,"  it  was  held  that  this 
was  a  direction  to  pay  to  such  beneficiary  the  amounts  of  a 
note  and  a  due-bill  given  her  by  the  husband  of  testatrix 
without  consideration.^ ^'^ 

Where  testator  by  will  had  divided  his  personalty  into  two 
parts,  one  consisting  of  "stocks,  bonds  or  other  credits,"  and 
the  other  certain  secured  claims  "books,  jewelry  and  personal 
effects,"  it  was  held  that  an  interest  in  an  insurance  business, 
purchased  by  testator  out  of  the  proceeds  of  the  sale  of  stock, 
passed  by  the  bequest  of  "credits."  ^^^ 

154  Lewis  V.  Pitman,  101  Mo.  281.  67  L.  J.  Ch.  N.  S.  87    (C.  A.)  ;   77 

155  Fleming  v.  Carr,  47  N.  J.  Eq.  Law  T.  Rep.  475.  (These  notes  had 
549 :  Wildberger  v.  Cheek,  94  Va.  been  treated  as  debts  of  her  hus- 
517:  27  S.  E.  441.  band's  estate  by  testatrix  in  settling 

i56Capp  V.  Brunner,  132  Pa.  St.       his  estate.) 
417.  158  Brandon    v.    Yeakle,    66    Ark. 

157 /n  re  Eowe  (1898),  1  Ch.  153;       377. 


587 

LAW     OF     WILLS. 


^499.     Interest  on  investments. 

^  A  bequest  of  a  fund  or  security  carries  with  it  the  interest 
which  had  accrued  at  testator's  death/-  and  of  course  it 
carries  with  it  interest  which  accrues  after  testators  death 
while  the  fund  is  in  the  hands  of  the  executor.^<^« 

The  context,  however,  may  prevent  the  application  of  this 
general  rule.  Thus,  where  the  testator  bequeathed  to  his  grand- 
son a  certain  sum  of  money  less  the  amount  of  certain  notes  de- 
scribed in  the  will  which  were  due  from  the  father  of  this 
grandson  to  the  testator,  it  was  held  that  this  deduction  was 
to  be  of  the  face  of  the  notes  only,  since  if  testator  were  to 
live  long  enough  the  legacy  would  thereby  be  defeated. 

But  where  the  debt  or  security  is  not  given,  but  a  sum 
equal  to  the  amount  of  debt  is  given,  accrued  interest  will 
not  pass,  since  the  testator's  ^intention  is  clearly  to  give  the 
designated  sum  and  no  more.^^^ 

§500.     life  insurance. 

A  life   insurance  policy,   payable  to  the   legal  representa- 
tives of  testator  and  for  the  benefit  of  his  estate,  passes  under 
a  general  bequest  of  his  property,-^  and  so  does  a  po  icy  m 
favor  of  testator  upon  the  life  of  one  who  survives  him._ 
But  a  life  insurance  policy,  payable  to  any  person  the   in- 
sured might  nominate  or  subject  to  his  disposition  by  wil  , 
deed,  or  other  writing,  does  not  pass  under  a  genera    resid- 
uary clause,  no  reference  being  made  to  the  policy.  Nor 
does  a  policy  upon  the  life  of  the  husband  of  testatrix,  _  and 
payable  to  testatrix,  her  executor,  administrators  and  assigns, 
pass  by  a  bequest  of  her  interest  in  their  community  prop- 

n  .17    V     T  (it   appeared    from   the   whole   will 

i59riemmmg    v.    Carr,    4/    N     J.  [l'  ^^\^^^^^^^,^    intention    that    a 

Eq.  549,    (a  bequest  of  ^  ^-d  h  Id  *  J-   ^  at ^^^^^    ^^^^^^^^    ^^^^    ,^ 

by  testator  against  legatee),  citmg  ^^"^"'; 

and   following   Kent  v.   Tapl.y^  U       ''re^'l!  bl'rts  v.  Kuffin,  2  Atk.  112. 
Jur.  940  ;  Gibbon  v.  Gibbon,  13  C.  B.  ^^^  ^^^  ^^    ^^^^^^^  ^^  ^^^   ^^^^ 


'''L...^..  .    ...1...    1.8  Mass.  «*  Small  v.  Jose,  86  Me.  120 

G3 


...  SheffleM  V.  Pa,U.,,  ,.,S  Mass.  _«.  S^U  v^  ..ose,  ^^.  _  .-^-^^^ 

330. 

161  Garth  V.  Garth,  139  Mo.  456; 


688  LAW    OF    WILLS. 

erty.^^^  A  bequest  of  all  of  testator's  life  insurance,  how- 
ever, passes  policies  payable  to  another,  but  of  which  testator 
has  power  to  dispose  by  will.'l^'^  A  bequest  of  "all  the  in- 
surance policies  on  my  life,"  with  certain  specified  excep- 
tions, is  held  to  include  even  those  over  which  testator  had 
no  power  of  disposition.^  ^^ 

§501,     Release  of  obligations. 

Where  testator  by  will  releases  obligations  against  cert.ain 
persons,  it  is  to  be  determined  from  the  construction  of  the 
whole  will  what  obligations  were  included.  Where  the  ob- 
ligations are  described  the  question  is  comparatively  simple.^  ^^ 
Where  the  testator  refers  to  obligations  which  he  holds  "at 
this  time,"  it  is  held  that  this  simply  releases  such  obliga- 
tions that  are  incurred  at  the  time  of  the  making  of  the  will, 
and  does  not  include  subsequent  debts.^^*^  And  a  release  of 
all  notes  which  testator  might  hold  against  a  legatee  at  the 
time  of  testator's  death  does  not  include  subsequent  notes 
made  by  a  partnership  of  which  legatee  was  a  member,  the 
money  thus  obtained  being  used  in  the  firm  business  and  the 
debt  being  secured  by  a  conveyance  of  firm  property,^ '^^  nor 
does  such  a  release  include  a  note  and  mortgage  given  by 
legatee  to  testator  where  the  land  covered  by  the  mortgage 
has  been  sold  by  the  legatee  to  a  purchaser  who  assumed  and 
agreed  to  pay  the  note  thus  secured  and  received  a  corre- 
sponding reduction  in  the  amoimt  of  purchase  money  paid 
by  him  to  the  legatee.^ '^^ 

A  direction  in  a  will  that  the  debts  of  the  brother  of  tes- 

166  Evans  v.  Opperman,  76  Tex.  accepting  the  benefits  under  the  will, 
293.  or  retaining  the  policy  and  renounc- 

167  Tompkins    v.    Griffin,    92    Va.       ing  the  will.) 

307    (1896)  ;  23  S.  E.  756.  i69  Garth  v.  Garth,   139  Mo.  456. 

168  Van  Schaack  v.  Leonard,  164  i7o  Walls  v.  Walls,  182  Pa.  St. 
111.  602.     (While  testator  could  not      226. 

by  such  a  de\Tse  exclude  the  bene-  i^i  Waterman    v.    Alden,    143    U. 

ficiary  of  a  policy  over  which  tes-  S.  196. 

tator  had  no  power  of  disposition,  1^2  in  re  Lee,  141  N.  Y.  58,  affirm- 

he  could  put  him  to  an  election  be-  ing   65   Hun,   524. 

tween  surrendering  such  policy  and 


LAW    OF    WILLS.  ^"^^ 

tatrix  to  her  husband  should  first  be  paid  out  of  the  prop- 
erty given  him  by  the  will,  includes  notes  given  by  such 
brother  as  agent  for  his  brother  where  testatrix  had  always 
spoken  of  such  notes  as  his  debt,  and  he  was  morally  if  not 
legally  bound  to  pay  them. 

A  bequest  to  testator's  son,  reciting  that  testator  held  a  note 
against  him  for  $600,  and  providing  that  if  he  paid  the  note 
he  should  have  $600  in  lieu  of  said  note,  was  held  to  be  a 
direction  to  pay  the  amount  to  the  son  where  testator  had  vol- 
untarily surrendered  the  note.^'^^ 

§502.     General  and  particular  description. 

Where  property  is  disposed  of  by  words  of  a  general  de- 
scription, which  is  coupled  with  an  enumeration  by  way  ol 
a  particular   description,   the   authorities   do   not   agree  upon 
the  abstract  rule  in  determining  which  shall  prevail.     It  is 
said  by  some  courts  that  the  general  description  is  not  to  be 
limited  by  the  particular  one.^^^     While  in  other  cases  it  has 
been   said   in   general   terms   that   the   particular   description 
ordinarily  controls  the  general  description.^ ^«     In  actual  prac- 
tice the  courts  substantially  agree  that  the  intention  of  the 
testator  must  be  deduced  from  the  whole  will,   and  that  i. 
it  appears  that  the  particular  enumeration  is  given  merely  by 
way  of  example  the  general  description  controls;  while  if  the 
general  description  is  inserted  by  way  of  describing  the  ar- 
ticles given  in  the  particular  description,  the  particular  de- 
scription will  control. 

§503.     Inconsistent  gift  of  property. 

Where  the  description  of  the  property  seems  at  first  glance 
so  inconsistent  that  the  same  articles  are  disposed  of  several 
times  over,  the  courts  will  not  permit  such  a  result  li  con- 

X.3  Scott  V.  Neeves,  77   Wis.   305.  -«  Andrews    v.    ScWpe     84    Me. 

1T4  In  re  Lewis,  17  R.  I.  642.  170 ;  Kanouse  v.  Slockbower,  48  N. 

175  Wales  V.  Templeton,  83  Mich.  J.  Eq.  42. 
177. 


590  LAW     OF     V/ILLS. 

struction  can  reconcile  the  discrepancy.^ '^'^  Thus,  where  a 
gift  was  made  of  a  dwelling  house  and  all  that  is  therein  to 
a  widow  until  her  death,  then  providing  that  "it"  shall  go 
to  the  daughters,  and  subsequently  devising  a  tract  of  land  by 
description  which  includes  the  dwelling  house  to  testator's 
son,  it  was  held  that  "it"  referred  to  the  contents  of  the 
dwelling  house  which  passed  to  the  daughters,  the  house  going 
to  the  son.-^"^^ 

But  where  a  codicil  to  a  ^vill,  which  is  evidently  meant  to 
change  it,  after  disposing  of  certain  personal  property  makes 
a  gift  of  personal  property  "not  previously  disposed  of,"  it 
is  held  that  such  previous  disposal  does  not  refer  to  the  dis- 
position by  the  will.^^^ 

If  the  two  gifts  can  not  be  reconciled  the  last  will  take 
effect,  especially  if  the  last  is  specific  and  the  first  is  gen- 
eral.i^'^ 

§504.     Construction   affected   by   nature    of   testator's   property 
interests. 

In  construing  a  will  disposing  of  property,  a  strong  pre- 
sumption exists  that  testator  meant  to  dispose  only  of  such 
property  as  belonged  to  him,  or  over  which  he  had  a  power 
of  disposition.^  ^^  Thus  a  general  devise  of  testator's  prop- 
erty is  construed  not  to  show  an  intention  to  pass  an  estate 
held  by  him  in  trust  ;^^^  nor  will  it  be  construed  as  attempting 
to  pass  the  wife's  interest  in  community  property  ;^®^  nor  will 
it  be  construed  as  attempting  to  defeat  dower  or  homestead 
rights.^ ^^  Only  by  explicit  and  clear  language  can  testator 
show  an  intention  to  dispose  of  property  belonging  to  others, 

17T  I.add's  Estate,  94  Cal.  670.  v.  Tiverton,  16  R.  I.  643:  7  L.  R.  A. 

178  Hart  V.  Stoyer,  164  Pa.  St.  386;  Sullivan  v.  Latimer,  35  S.  C. 
523.  (The  court  in  this  case  rest-  422;  Haley  v.  Gatewood,  74  Tex. 
ed  their  decision  on  the  theory  that  281. 

the   construction   adopted   presented  i82  Buffon    v.    Tiverton,    16   R.    I. 

"the    least   difficulty.")  643;    7   L.   R.   A.    .386;    Sullivan   v. 

179  White    V.    Mass.    Institute    of  Latimer,  35  S.  C.  422. 
Technolo^,   171   Mass.   84.  iss  Gilmore's  Estate,  81  Cal.  240; 

180  \oung  V.  Mclntire,  3  Ohio  498.  Haley  v.  Gatewood,  74  Tex.  281. 

181  Mann   v.   Martin.    172   111.    18,  184  See  Sec.   504.  * 
affirming  69   111.   App.   501:    Bufton 


LAW     OF     WILLS.  '-'^-^ 

or  to  defeat  vested  rights  over  which  he  has  no  power  by  will. 
In  snch  case  the  parties  whose  rights  are  affected  have  the 
option  of  defeating  the  provision  by  asserting  their  rights  i± 
they  wish.'^^ 

§505.     Residuary  clauses. 

A  residuary  clause  is  that  part  of  the  will  which  makes 
disposition  of  the  residuum  of  part  or  all  of  testator's  prop- 
erty, that  is  that  part  thereof  not  otherwise  disposed  of  by 
will.'  A  general  residuary  clause  disposes  of  all  the  residumn 
of  testator's  property;  while  a  particular  residuum  clause  dis- 
poses only  of  the  residuum  of  certain  specified  property. 

§506.     Form  of  residuary  clause. 

Leaving  for  later  discussion  what  can  and  does  pass  under 
residuary  clauses,  the  form  of  such  clauses  will  first  be  con- 
sidered.    The  ordinary  residuum  clause  speaks  of  the  prop- 
erty passed  as  the  residuum,  or  remainder,  or  residue  of  tes- 
tator's  eftate.^^^      Thus,   where   there   was    a    direction    m    a 
poorly  drawn  will  for  the  payment  of  testator's  debts,  and  a 
statement  that  he  wants  certain  named  persons  to  have  cer- 
tain named  chattels  and  amounts  of  money,  a  clause  giving 
to  other  persons  the  "remainder  to  keep   and   dispose  of  as 
they  think  best"  was  treated  as  a  residuary  clause.^^^      And 
where  a  clause  purports  to  pass  the  residue  of  testator's  es- 
tate, and  attempts  to  give  a  list  of  the  different  items  m  such 
residue,  the  clause  passes  the  entire  residue,  and  is  not  lim- 
ited to' the  items  named.^««      This  view  has,   however,  been 
questioned  recently,  and   a  gift  of  "all  the  residue  of  testa- 
tor's real  estate  and  personal  property  not  hereinbefore  enu- 

xsr,  See  Chapt.   XXXIV.  -^  Cheney  v.  Plumb,  79  Wis.  602. 

.sa  Simmon!   v.    Spratt,    26    Fla.  xss  z.   re   ^-VV    i^^_^^^)^J-^^'^ 

449-  9  L    R.  A.  343;  Rush  County  Miner's  Will,  146  K  \.  121;  Tomp- 

Commissi"oners    v.    Dinwiddie,    139  kin's  Estate,  1.54  N.  Y.  634,  modify- 

Ind.  128;  Lojran's  Estate.  131  N.  Y.  ing  10  App.  Div.  5-2. 
456;   Farnum's  Estate,   191   Pa.  St. 
75. 


592  LAW     OF     WJLLS. 

merated  as  hereinafter  described"  is  a  specific  gift  of  the 
property  described,  and  is  not  a  true  residuary  clause.^  "^^ 

The  words  "residuum,"  "remainder,"  and  the  like,  are  not 
at  all  necessary,  however,  to  pass  the  residuum  of  testator's 
estate.  Where  the  testator,  after  making  specific  devises  and 
legacies,  bequeathed  the  ''balance"  of  his  estate,  this  operates 
as  a  residuary  clause.^ ^*^  Any  form  of  words  which  shows  an 
intention  to  disjDose  of  all  of  testator's  estate  undisposed  of, 
will  serve  as  a  residuary  clause.^  ^^  Thus  a  direction,  after 
some  specific  legacies,  that  a  certain  person  "shall  have  a 
full  share  of  my  estate,  share  and  share  alike  with  my  brothers 
and  sisters,"  is  a  residuary  clause  ;^^^  and  so  is  a  bequest  of 
chattels  described  in  general  terms  which  constitute,  in  fact, 
all  the  residue  of  testator's  estate.^  ^^ 

A  provision  in  the  middle  of  a  will,  "I  appoint  A  my  leg- 
atee, and  give  to  her  all  not  before  specified  in  this,  and  re- 
quest her  to  give  as  I  may  direct,  or  sell  from  what  remains," 
was  held  to  be  a  residuary  clause.^  ^^ 

§507.     What  passes  by  a  residuary  clause. 

The  residuum  of  an  estate  is  that  i^art  of  it  left  after  pay- 
ing the  debts  of  testator  and  the  expenses  of  administration 
and  undisposed  of  by  the  rest  of  the  will.^''^     Where  testator, 

ISO  Williams     v.     McKeand,      119  uary  estate  was  held  to  be  a  resid- 

Mich.   507.  uary  clause). 

i9f  Schumate   v.    Bailey,    110   Mo.  102  Striewig's  Estate,  169  Pa.  St. 

411;    Davis  v.   Hutchings,    15   O.   C.  61. 

C.  174;  8  0.  C.  D.  52;  overruled  on  i93  McNeil   v.   Masterson,   79   Tex. 

another    point    in   Davis   v.   Davis,  670;    Tompkin's   Estate,   154  X.   Y. 

62  0.  S.  411.  634,  modifying  10  App.  Div.  572. 

19^  Morgan    v.    Huggins,    42    Fed.  194  Morton   v.   Woodbury,    153   X. 

Rep.   869;    L.  R.   A.   540;     ("I   give  Y.  243. 

and  recommend  to  the  earth  to  be  i95 /jj,  re  Palmer   (C.  A.)    (1893), 

buried  in  a  decent   Christian  man-  3  Ch.  369 ;  American  INIortgage  Com- 

ner   at   the   discretion   of   the   exec-  pany   v.   Boyd,   92   Ala.    139;    Steb- 

utors.  .  .  .  and     so     much     of     my  bins    v.    Stebbins,    86    Mich.     474; 

wordly  estate   I  give  and  bequeath  Meisenheimer    v.   Bost,    106    X.   C. 

unto    (a   person  named),   and  I   do  10;   Stevens  v.  Underbill,  67  X.  H. 

hereby  revoke  and  disannul  all  other  68  ;    Sweitzer's   Estate,    142   Pa.    St. 

wills").     Hale  v.  Audsley,  122  Mo.  541;   Judevine  v.  Judevine,   61   Vt. 

316;    Tompkin's   Estate,    154   X.   Y.  587;  7  L.  R.  A.  517;  Bird  v.  Stout, 

634 ;    ( an  enumeration  of  the  resid-  40   W.   Va.   43. 


LAW    OF    WILLS. 


593 


after  giving  certain  legacies,  disposed  of  what  was  left  after 
payment  of  ''all  debts  and  expenses/'  it  was  held  that  this 
did  not  revoke  the  legacies,  but  the  "debts  and  expenses"  in- 
cluded buid  legacies/^'-  since,  under  a  residuary  clause,  no 
part  of  the  property  passes  which  is  specifically  provided  for 
by  a  valid  legacy  or  devise.^  ^'^ 

The  word  "residue,"  however,  may  be  used  in  a  different 
meaning,  according  to  the  context  of  the  will.  Where  the 
word  "residue"  is  used  at  the  beginning  of  the  will,  as  a 
name  for  what  would  be  left  of  the  estate  after  payment  of 
funeral  expenses,  the  word  "residue,"  occurring  in  the  latter 
part  of  the  will  after  certain  legacies  have  been  bequeathed, 
will  be  construed  as  meaning  the  part  of  the  estate  which  was 
called  the  residue  at  the  beginning  of  the  wilL^^^ 

It  is  immaterial  whether  the  specific  bequest  is  contained  in 
a  part  of  the  will  preceding  or  following  the  residuary 
clause /^^  nor  will  a  residuary  clause  carry  property  which  tes- 
tator has  clearly  excepted  from  the  operation  of  such  clause  ^^^ 
This  exclusion  must  be  plainly  and  unequivocally  manifested 
upon  the  wilL^^i  Thus,  where  testator  recited  erroneously  that  he 
had  settled  certain  specific  property  upon  a  person  named, 
it  was  held  that  his  interest  in  the  property  nevertheless 
passed  under  a  general  residuary  clause.^^^     ^^j.  jg  p  general 

196  Stebbins  v.  Stebbins,  86  Mich.  acies,  a  large  portion  of  the  estate 
474;  Lepard  v.  Skinner,  58  Conn.  would  have  been  undisposed  of). 
329.  199  Wheeler  v.  Brewster,  68  Conn. 

197  Loving  V.  Rainey,  —  Tex. — ;  177;  Moffet  v.  Elmendorf,  152  N.  Y. 
1896  36  S.  W.  335;  Mulligan's  Es-  475;  Morton  v.  Woodbury,  153  N. 
tate,  157  Pa.  St.  98;  Waters  v.  Y.  243;  Markle's  Estate,  187  Pa. 
Waters,   —   Ky.   —    (1895),   28    S.  St.  639. 

W.  958;   Gage  v.  Wood,   171   Mass.  aoo'Tindall    v.    Tindall,    9    C.    E. 

465;    Dean  v.  Winton,   150   Pa.   St,  Green,  512;  Roy  v.  Monroe,  47  N.  J. 

227;    Markle's   Estate,    187    Pa.    St.  Eq.    356.      Thus    a    specific    legacy 

639.  payable  out  ol  the  residuum  is  not 

198  Sherman    v.   Baker,   20    R.   I.  as    residuary    gift.      Williams'    Es- 

446;  40  L.  R.  A.  717;    (in  this  case  tate,  112  Cal.  521. 

the  construction  adopted  disposed  of  201  Morton   v.   Woodbury,    153   N. 

practically    the    entire    estate.      If  Y.  243. 

the   word   "residue"   had   been   con-  202/^  re  Bagot   (   C.  A. )    (1893), 

strued   as    meaning   what   was    left  3  Ch.  348. 
after   deducting  the   debts  and   leg- 


594  LAW     OF    WILLS. 

residuary  clause  limited  by  a  subsequent  clause  providing  that 
the  executors  shall  take  any  bequests  or  devises  which  may  be 
adjudged  illegal  in  trust  to  carry  out  provisions  of  such  be- 
quests or  devises.^*'^ 

In  order  to  avoid  partial  intestacy,  the  general  rule  is  that 
a  residuary  clause  should  be  liberally  construed.^'^'^ 

Under  a  residuary  clause  all  property  not  otherwise  dis- 
posed of,  and  not  specifically  excepted  from  the  operation  of 
such  clause,  passes.^^^  Thus  where  a  fund  is  disposed  of,  the 
gift  to  take  eilect  at  some  time  after  testator's  death,  and  the 
income  arising  from  such  fund  is  not  disposed  of,  this  income 
will  pass  under  a  residuary  clause.^°^ 

So  interest  upon  a  fund  reserved  for  payment  of  a  legacy 
upon  the  arrival  of  the  legatee  at  majority  passes  under  a 
residuary   clause."*^^ 

The  residuary  clause  does  not  pass  insurance  upon  a  house 
which  was  specifically  devised  and  was  destroyed  by  fire.^°^ 

A  residuary  clause  passes  not  only  all  the  property  which 
the  testator  did  not  attempt  to  dispose  of,  but  also,  as  a  gen- 
eral rule,  all  the  property  which  he  attempted  to  dispose  of 
but  of  which  his  disposition  has  for  any  reason  failed.^*^^ 
Thus,  a  legacy  which  has  lapsed  by  reason  of  the  death  of 

203  Booth  V.   Baptist  Church,   126  Friendless,    113    X.    Y.    337;    In   re 
N.  Y.  215.  Allen,   151   N.  Y.  243;    Cochrane  v. 

204  Lamb  v.  Lamb,  131  X.  Y.  227;  Schell,   140    JSl.   Y,   516;     Minot    v. 
Riker  v.   Cormvell,   113  X.  Y.   115;  Baker,  147  Pa.  St.  348. 

Floyd  V.  Carow,  88  X.  Y.  560.  2077^    re    Inman    (1893),    3    Ch. 

205  Bernard    v.    Minshall,    Johns.       518. 

(Eng.  Ch.),  276;  Molineaux  V.  Key-  208  Green    v.    Green,    50    S.    Car. 

nolds,  55  X.  J.  Eq.  187  ;  Roberts  v.  514. 

Cooke,  16  Ves.  Jr.  451;   Wheeler  v.  209  Leake    v.    Robinson,    2    Meriv. 

Brewster,   68    Conn.    177:    Harkness  393;    Buchanan    v.    Lloyd,    64    Md. 

V.  Harkey,  91  X.  Car.  195;  Floyd  V.  306;    Barnet   v.    Barnet,    40    X.    J. 

Carow,    88    X.    Y.    560;     Lamb    v.  Eq.     380;    Rockwell,    v.    Swift,    59 

Lamb.    131    X.    Y.    227;    Morton   v.  Conn.    289:    Welman    v.    Xeufville, 

Woodbury,  153  X.  Y.  243.  75  Ga.  124:   Burke  v.  Stiles,  65  X. 

206 /»    re    Inman     (1893),    3    Ch.  H.  163:  /?z  re  Benson,  96  X.Y.  499  ; 

518;   Youngs   v.   Youngs,   45   X.   Y.  Miller's   Appeal,    113   Pa.    St.   459; 

254;    Cruikshank   v.   Home   for   the  Gallagher  v.  Rowan,  86  Va.  823. 


LAW    OF    WILLS.  ^^^ 

the  beneficiary  before  that  of  testator,  will  pass  under  a 
residuary  clause  if  there  is  no  specific  provision  for  it.^^o 

Lapsed  devises  also  pass  under  a  residuary  clause  at  mod- 
em law.^^^ 

So  where  a  devise  or  bequest  is  void,  as,  for  example,  be- 
quests to  a  charitable  purpose  jiiade  by  a  will  executed  with- 
in the  time  limited  by  statute,"  ^  it  passes  under  a  general 
residuary  clause.^^^ 

And  so  gifts,  which  testator  intended  to  take  effect,  but 
which  are  void  because  of  a  violation  of  the  rule  of  perpetu- 
ities, pass  under  a  general  residuary  clause  i^^^  and  gifts  on 
condition,  which  fail  by  reason  of  breach  of  condition.^i^ 

§508.     Effect  of  failure  of  part  of  residuary  clause. 

There  is,  however,  a  well  recognized  exception  to  the  ruxe 
that  lapsed  and  void  legacies  pass  under  the  residuary  clause. 
This  exception  is  where  the  legacy,  which  has  lapsed  or  be- 
come void,  is  contained  in  the  residuary  clause  and  gives 
the  entire  residuum,  or  a  specific  fraction  thereof,  to  the 
beneficiary.  A  residuary  clause  which  is  void,  or  which 
lapses,  does  not  pass  to  the  other  beneficiaries  under  a  resid- 
uary clause,  even  if  there  are  any,  unless  such  provision  is 
specifically  made  in  the  wilL^^*^  It  passes,  as  in  cases  of  in- 
testacy, according  to  its  nature,  personalty  going  to  the  next 
of  kin  and  realty  to  the  heirs.^^^ 


2ioRotch  V.  Loring,  109  Mass 
191;  Bagwell  v.  Dry,  1  P.  Wms 
700 ;  Leake  v.  Robinson,  2  Mer.  3G3 
Skrymser  v.  Northcote,  1  Swanst 
566 ;  Roberta  v.  Cooke,  16  Ves.  451 
Flovd  V.  Carow,  88  N.  Y.  560 ;  Crai 


213  Gray's  Estate,  147  Pa.  St. 
67;  Neff's  Appeal,  52  Pa.  St.  326; 
Woolmer's  Appeal,   3  Wli.  477. 

214  Booth  V.  Baptist  Church,  126 
N.  Y.  215. 

215  Rockwell    V.    Swift,    59    Conn. 


he-id   V     Given,    10    S.   &   R.    (Pa.),  289;     (devise    forfeited    by    present- 

ing  a   bill   against  the  estate,   goes 

'^iiMoffett  V.   Elmendorf,    152  N.  into  the  residuum);   Rotch  v.  Lor- 

Y    475  •  O'Toole  v.  Browne,  3  El.  &  ing,  169  Mass.  190. 

Bl'.  572;  Lamb  v.  Lamb,  131  N.  Y.  -o  Oray's  Estate    147  Pa.  St.  67. 

227;  Smith  v.  Smith,  141  N.  Y.  29;  ^^^  Silcox  v.   Nelson,   24   Ga^  84: 

Cruikshank    v.    Home,    113    N.    Y.  Chadwick  v.  Chadwick,  37  N   J   Eq. 

337;   In  re  Bonnet.   113  N.  Y.  522.  71:    Beekman   v.   S«"««"'   ^^   ^^  J. 

212  See  Sees.  745,  746.  208  :  Floyd  v.  Carow,  88  N.  \.  560; 


596  LAW     OF     WILLS. 

§509.     Pro  rata  distribution  of  residuum. 

Testators  sometimes  provide  that  if  there  should  be  a 
residuum  after  payment  of  debts  and  legacies,  the  residuum 
is  to  be  divided  'pro  rata  among  the  legatees.  This  is  treated 
as  an  additional  legacy,  and  not  a  means  of  paying  the  leg- 
acies already  given.^^^  x\s  the  name  implies,  the  'pro  rata 
distribution  is  to  be  made  by  adding  together  all  the  legacies 
given,  ascertaining  the  per  cent,  of  each  legacy  to  the  whole, 
and  giving  to  each  legatee  his  proportionate  per  cent,  of  the 
residuum.'^  ^ 

Where  testator  had  provided  that  part  of  his  property 
should  be  divided  in  accordance  with  the  statute  of  distribu- 
tion, a  provision  that  if  testator's  investments  should  either 
decrease  or  increase  in  amount  or  value,  this  gain  or  loss 
should  be  divided  among  devisees  and  legatees  named  above 
"as  given  above  or  pro  rata,"  was  held  void  for  uncertainty, 
it  not  appearing  whether  this  clause  was  intended  to  affect 
the  provision  for  distribution  in  accordance  with  the  statute, 
or  not.^20 

§510.     Effect  of  inconsistent  residuary  clauses. 

Where  a  poorly  drawn  will  contains  more  than  one  general 
residuary  clause,  the  rule  is  that  the  first  clause  is  valid,  and 
nothing  passes  under  the  remaining  clauses.^^i 

This  is  different  from  the  rule  in  force  in  case  of  specific 
bequests  and  devises.  It  rests  on  the  theory  that  the  later 
residuary  clauses  only  purport  to  dispose  of  what  is  undis- 
posed of  by  the  rest  of  the  will,  which  is  nothing 

A  direction  that  the  residuum  is  to  be  divided  equally 
among  certain  persons  must  be  literally  complied  with,  with- 

Booth    V.    Baptist    Church,    126    N.  387 ;  Chambers  v.  Chambers,  41  La. 

Y.  215;   Kerr  v.  Dougherty,  79  N.  Ann.    443;    Gray's    Estate,    147    Pa. 

Y.  327;  Gray's  Estate,  147  Pa.   St.  St.  67. 

67;    Skipwith   v.   Cabell,   19   Gratt.  220  Nelson   v.   Pomeroy,   64   Conn. 

(Va.),758.  257. 

218  Chambers  v.  Chambers,  41  La,  221  Wheeler  v.  Brewster,  68  Conn. 
Ann.  443.  177:    Morton  v.   Woodbury,    153  N. 

219  Kosenburg   v.    Frank,    58    Cal.  Y.    243. 


597 

LAW     OF    WILLS. 

out  any  reference  to  the  equality  of  the  other  gifts  in  the  will 
to  such  persons,^^^  even  where  a  valuation  is  placed  by  the 
will  upon  such  other  gifts.-^^ 

2..Bybee      v.       Bybee,      -Ky.-  ''''''''''''  J' J\tT    "    '^^'    '^ 

(1896)  ;  35  S.  W.  904;  In  re  Holder,_       (1896)  ;  35  S.  W.  904. 
_  j>^  l'.  _;  41  Atl.  576. 


598  I^W    OF     WILLS. 


CHAPTER  XXII. 

DESCRIPTION  OF   BENEFICIARIES. 
§511.     Husband  and  wife. 

The  term  "husband"  and  "wife"  have  for  their  primary 
meaning,  undoubtedly,  only  those  who  are  actually  and  law- 
fully in  the  designated  relation.  The  context  and  the  sur- 
roim.ding  circumstances  may  extend  the  meaning  of  the  term 
to  one  who  was  in  the  ostensible  relation  of  husband  or  wife, 
although  not  legally  so  related.  Thus,  where  testator  had  de- 
serted his  first  wife,  and  had  subsequently  gone  through  the 
form  of  marriage  with  another  woman,  with  whom  he  was 
living  at  the  time  of  his  death,  and  in  his  will  he  referred 
to  her  daughter  by  a  former  husband  as  his  "stepdaughter" 
and  to  his  ehildren  by  his  lawful  wife  as  "my  only  children 
by  my  first  wife,"  it  was  held  that  a  devise  to  testat-or's 
"wife"  meant  the  woman  with  whom  he  was  living  at  the  time 
of  his  dcath.-^ 

Where  the  will  refers  by  name  to  a  woman  with  whom 
testator  is  living  unlawfully  as  his  "wife,"  the  fact  that  she 
is  not  testator's  lawful  wife  does  not  affect  her  rights  as 
created  by  the  will.  Thus,  a  devise  to  such  a  person  with  an 
additional  direction  that  "she  shall  be  entitled  besides  the 
above  bequest,  to  all  under  the  law  in  such  case  made  and 

iPastene  v.  Bonini,  IGG  Mass.  85. 


LAW     OF    WILLS. 


599 


provided  as  my  widow"  gives  her  in  addition  to  such  bequest 
the  same  interest  that  she  would  have  been  entitled  to  if 
she  had  been  his  lawful  wife.^ 

A  devise  to  the  wife  of  a  designated  person  often  raises 
some  question,  where  the  wife  who  was  living  at  the  date  of 
the  execution  of  the  will  dies,  and  the  person  designated  mar- 
ries a  second  time.  Where  the  first  wife  dies  and  the  person 
designated  remarries  in  the  lifetime  of  testator,  it  is  held 
that  such  second  wife  is  entitled  to  a  bequest  in  trust  for  the 
maintenance  of  such  person  "his  wife  and  children."  It  was 
said  in  this  case  that  the  usual  presumption  would  be  that 
such  a  devise  was  for  the  benefit  of  wife  living  at  the  time 
of  the  execution  of  the  will,  but  that  the  context  rebutted  this 
presumption  by  showing  an  intent  to  provide  for  the  family 
of  the  person  designated  as  it  existed  at  testator's  death.^ 

So  a  gift  in  support  of  A's  "family"  was  held  to  include 
A's  wife  B,  though  A  was  not  then  married  to  B."* 

But  where  the  wife  dies  after  the  testator,  and  the  person 
designated  remarries,  or  where  such  person  had  never  mar- 
ried before  testator's  death  and  marries  afterward,  it  is 
usually  held  that  such  a  devise,  if  construed  as  including 
the  wife  married  after  testator's  death,  would  constitute  a 
perpetuity.  Accordingly,  in  such  cases,  the  word  "wife"  is 
held  not  to  include  such  wife  married  after  testator's  death.^ 

§512.     Heirs. — Primary  meaning. 

Heirs  is  a  term  whose  primary  meaning,  in  law,  has  long 
been  recognized  and  defined.     "An  heir  is  he  upon  whom  the 

2  Dicke  V.  Wagner,  95  Wis.  260 ;  tator's  nephew  and  his  wife  and  the 

70  N.  W.  159.  survivor    for    their    natural    lives, 

3/n.  re  Drew    (1899),   1   Ch.  336,  or  the  widowhood  of  the  wife. 

68  L.  J.  Ch.  N.  S.  157.  Such  a  gift  is  held  to  be  a  per- 

4  Smith  V.  Greely,  67  N.  H.   377.  petuity  for  the  reason  that  a  wife 

5  Beers  v.  Narramore,  61  Conn.  of  tRe  beneficiary  by  a  marriage 
13;  Dean  v.  Mumford,  102  Mich.  after  testator's  death  might  be  a 
510;  Van  Syckel  v.  Van  Syckel  person  not  in  being  at  the  testator's 
51  N.  J.  Eq.  194;  26  Atl.  156.  death,  whose  parents  were  not  then 

But  in  Wilmot  v.  De  Mill,  32  N.  in  being.  This  is  a  possible  though 
B.  8,  it  was  held  that  such  wife  not  a  usual  combination.  For  the 
could   take   under   a   devise   to   tes-       rule    against   Perpetuities    see    Sec. 

625. 


600 


LAW     OF     WILLS. 


law  casts  the  estate  immediately  npou  the  death  of  the  an- 
cestor." "  This  definition  must  of  course  be  understood  as 
applying  primarily  to  real  estate,  and  to  denote  those  who 
would  be  entitled  to  inherit  the  real  estate  of  the  deceased  an- 
cestor by  descent  if  he  died  intestate.^  This  primary  mean- 
ing of  '"heirs"  is  the  meaning  which  should  be  given  to  it 
when  employed  in  a  will  in  the  absence  of  anything  in  the 
will  or  in  the  surrounding  circumstances  to  suggest  a  different 
meaning.^  This  rule  applies  even  where  the  heirs  are  non- 
resident aliens,  and  can  only  take  under  limited  conditions.® 

§513.     Husband  or  wife  as  ''heir." 

Where  the  statutes  of  descent  and  distribution  limit  the 
amount  which  the  widow  may  take  as  heir,  a  provision  in 
a  will  which  divided  a  sum  among  the  ''heirs  at  law"  of  a 
deceased  child  of  testator's  enures  to  the  benefit  of  the  sur- 
viving widow  of  such  child,  but  only  to  the  amount  which  she 
could  take  from  the  estate  of  her  husband  as  "heir"  had  he 


6  2  Black.  Com.  201;  Rawson  v. 
Rawson,  52  111.  62 ;  Kellett  v.  Shep- 
ard,  139  111.  433;  Fabens  v.  Fabens, 
141  Mass.  395 ;  Lincoln  v.  Perry, 
149  Mass.  368 ;  Johnson  v.  Brasing- 
ton,  156  N.  Y.  181 ;  Ashton's  Rstate, 
134  Pa.  St.  390. 

7  Ruggles  V.  Randall,  70  Conn.  44 ; 
Philadelphia  Trust,  etc.,  Co.  v.  Isaac, 
167    Pa.    St.   270. 

8/?i  re  Ferguson,  28  Can.  S.  C. 
38;  Allen  v.  Craft,  109  Ind.  476; 
Irvine  v.  Newlin,  63  Miss.  192; 
Woodward  v.  James,  115  N.  Y.  346; 
Lawton  v.  Corlies,  127  N.  Y'.  100, 
affirming  12  N.  Y".  S.  484 ;  Bodine  v. 
Brown,  154  N.  Y''.  778;  Johnson  v. 
Brasington,  156  N.  Y.  181;  Ashton's 
Estate,  134  Pa.  St.  390;  Harman's 
Appeal.  135  Pa.  St.  441;  Wallace 
V.  Minor,  86  Va.  550;   10  S.  E.  423. 

"Although  in  the  case  at  bar  the 
heirs  of  (the  life  tenant)  do  not 
take  from  her  by  inheritance,  but 
take  as  persons  designated  by  the 
will,   yet   we   know   no   way   of   de- 


termining the  person  intended  by 
the  will  except  by  ascertaining  the 
persons  who  by  law  would  have  in- 
herited the  estate  from  her  if  she 
had  died  seized  of  it  and  intestate." 
Lavery   v.   Egan,    143   Mass.    389. 

3  Furenes  v.  Severtson,  102  lo. 
322. 

In  this  case,  testator  devised  his 
real  estate  to  his  wife  for  life,  and 
on  her  death  one-half  to  her  heirs 
and  one-half  to  his.  He  had  no 
children  and  no  relatives  except 
some  non-resident  aliens  who  were 
prohibited  from  acquiring  land  in 
Iowa  by  descent.  Where  the  land 
was  acquired  by  purchase,  they  can 
hold  it  for  only  ten  years.  It  was 
held  that  the  word  "heirs"  meant 
those  who  would  have  inherited  but 
for  the  restrictions  imposed  by 
reason  of  alienage ;  hence  the  aliens 
took  under  the  will."  Furenes  v. 
Severtson,  102  lo.  322;  71  N.  W. 
196. 


LAW     OF     WILLS. 


601 


died  intestate  -     So  a  husband  may  take  as     heir  Thus, 

imder  modern  statutes  it  is  provided  that  in  case  husband  or 
wife  dies  intestate,  and  leaving  no  children  or  their  repre- 
sentatives, the  property  of  the  decedent  shall  pass  to  the  sur- 
viving spouse.  Under  these  statutes  such  surviving  spouse 
may  'Vith  strict  regard  to  the  significance  of  the  term,  be 
desLated  as  (an)  heir,"  and  the  term  heir  as  used  m  a  will 
mav"  in  the  absence  of  anything  to  show  a  contrary  intent, 
be  treated  as  including  such  surviving  spouse.^ 

§514.     Heirs. — Extended  meaning. 

But  the  word  ''heirs"  may  be  modified  by  the  context  of 
the  rest  of  the  will  or  surrounding  facts  and  circumstances 
so  as  to  have  a  very  different  meaning  from  this  technical 
meaning.  As  has  been  said,  there  is  no  inflexible  rule  for  de- 
termining the  meaning  of  the  words  -'heirs  at  law. 


10  Olney  v.  Lovering,  167  Mass. 
446  (in  this  case  $5000);  Weston 
V.  Weston,  38  O.  S.  473. 

iiNeeley's  Estate,  15.5  Pa.  St. 
133;  Olney  v.  Lovering,  167  Mass. 
46     (in  this  case  $5000). 

Contra,  that  wife  does  not  take 
in  devise  to  heirs  and  next  of  kin. 
Morris  v.  Bolles,  65  Conn.  45; 
Dodge's  Appeal.  106  Pa.  St.  216; 
Richardson  v.  Martin,  55  N.  H.  45 ; 
Piatt  v.  Mickle,  137  N.  Y.  106; 
nor    does    the    husband;    Mason    v. 

Baily,   6  Del.   Ch.   129;    Wilkins  v. 

Ordway,  59  N.  H.  378  ;   Irvin's  Ap- 
peal, 106  Pa.  St.  176 

i2Durbin    V.    Redman,    140    Ind. 

694;   Lawrence  v.  Crane,  158  Mass. 

392;  Holmes  v.  Hancock,  158  Mass. 

398;    Durfee  v.   MacNeil,   58    0.    S. 

238;    Neeley's   Estate,    155    Pa.    St. 

133. 

The  context  may  show  that  a 
different  meaning  was  intended. 
Thus,  where  the  wife  of  testator 
would  have  been  a  statutory  heir, 
a  devise  to  the  wife  in  lieu  of  dower, 
but  if  she  should  claim  dower  then 
to  the  "heirs"  of  testator  was  held 


to  be  a  devise  to  testator's  brothers 
and  sisters,  there  being  no  children. 
Jones  V.  Lloyd,  33  0.  S.  572;  so 
Stewart   v.    Powers,    9    Ohio    C.    C. 

143. 

13  Swenson's  Estate,  55  Minn.  300 ; 
Townscnd    v.    Townsend,    25    0.    S. 

477. 

"It  is  well  known  that  persons  un- 
skilled   in    the    law,    use    the   word 
"heirs"    as    descriptive    of    a    class 
of    persons    who    can    not,    in    fact, 
take    as    heirs.      In    recognition    of 
this   doctrine,   the   words   "heirs   at 
law"  have  been  construed  to  mean 
adopted  children;  next  of  kin,. heirs 
of  a  particular  class  or  description, 
heirs    presumptive,    heirs    apparent, 
heirs  at  the  date  of  the  will,  heirs 
at   the   decease   of   the   testator,   or 
heirs  at  even  a  later  date,  the  con- 
struction   resting    in    each    particu- 
lar  case   upon   an   ascertainment  of 
the    testator's    intention    from    the 
words  used,  from  the  context  of  the 
instrument  and  from  the  surround- 
ing    circumstances."       Furenes     v. 
Severtson,    102    la.    322. 


602  LAW    OF     WILLS. 

"The  word  'heirs'  is  a  flexible  one,  and  when  used  ir.  the 
will  should  be  so  construed  as  to  give  effect  to  the  manifest 
intention  of  the  testator/'  and  the  sense  in  which  it  is  used  is 
'"alwajs  open  to  inquiry."  ^^ 

The  word  "heir"  or  "legal  heir"  of  a  person  who  is  liv- 
ing may  mean  the  "heir  apparent,"  or  the  j^erson  who  would 
be  entitled  to  inherit  from  the  person  named  if  he  were  dead.^^ 
So  where  testator's  intent  is  clear,  "heirs"  may  be  held  to 
mean  those  who  would  be  regarded  as  testator's  heirs  if  tho 
parents  of  such  persons  were  dead.^^ 

This  primary  meaning  may  either  be  extended  by  the  couv 
text  or  surrounding  circumstances  so  as  to  include  meanings 
outside  of  its  primary  signification,  or  it  may  be  so  restricted 
by  context  or  surrounding  circumstances  as  to  exclude  classes 
of  persons  who  otherwise  would  be  included  under  the  primary 
meaning. 

To  consider  first,  cases  where  the  meaning  is  extended. 

§515.     Meaning"  of  "heirs"  in  bequests  of  personalty. 

When  in  the  will  the  word  "heirs"  is  used  as  indicating  the 
beneficidiy  of  a  bequest  of  personalty,  the  prima  facie  pre- 
sumption is  that  it  means  the  next  of  kin  under  the  Statute 
of  Distribution  of  Personal  Property.-^ '^ 

1*  Jones   V.   Lloyd,   33   O.    S.   572.  9  L.  R.  A.  509 ;    Swasey  v.  Jaqvies, 

15  Barber  v.  R.  R.,  166  U.  S.  83;  144    Mass.    135;    Harraden   v.    Lar- 

Healey   v.    Healey,    70    Conn.    467;  rabee,   113  Mass.  430;   Houghton  v. 

Strain    \.    Sweeney,    163    111.    603;  Kendall,    7   All.   72;    Swenson's   Es- 

( construction    adopted    in   order    to  tate,  55  Minn.  300 ;  Reen  v.  Wagner, 

keep  the  title  to  realty  from  being  in  51  N.  J.  Eq.   1;   26  Atl.  467;  Mon- 

abeyance)  ;   Barton  v.  Tuttle,  62  K  tignani    v.    Blade,    145    N.    Y.    Ill; 

H.   518;   or  "next  of  kin,"  Montig-  Corbitt  v.  Corbitt,  1  Jones  Eq.  114; 

nani  v.  Blade,  145  N.  Y.  Ill:  Cush-  Nelson    v.    Blue,    63    N.    Car.    659"; 

man  v.  Horton,  59  X.  Y.  149.  Cosbn^  v.  Lee,  3  Gaz.   173    (Ohio)  ; 

leMcKelvey   v.   McKelvey,    43    O.  2    Dis.    460;    Ashton's    Estate,    134 

S.  213.  Pa.    St.    390;    Comly's    Estate,    136 

"Thompson's    Trusts,    9    Ch.    D.  Pa.   St.    153;    Croom  v.   Herring,   4 

607 ;    Keay   v.    Boultonj   25    Ch.   D.  Hawks,  393 ;  see  on  the  same  point, 

212;  Eddings  v.  Long,  10  Ala.  203;  Fabens   v.   Fabens,   141   Mass.   395; 

Lord  V.  Bourne,  63  Me.  368,  overrul-  Merrill  v.  Preston,  135  Mass.  451 ; 

ing  Mace  v.  Cushman,  45  Me.  250;  Minot    v.    Harris,    132    Mass.    528; 

Kendall  v.  Gleason,  152  Mass.  457;  Sweet  v.  Button,   109  Mass.  589. 


LAW     OF     WILLS.  "^^ 


"The  word  'heirs,'  when  used  to  denote  succession  in  a 
gift  of  personalty  is  always  a  misnomer,  because  'heirs'  is  a 
word  of  limitation,  and  there  can  be  no  limitation,  in  strict- 
ness, of  a  chattel  interest.  Its  popular  meaning  comprehends 
those  who  succeed  to  the  property  of  an  ancestor,  and  hence 
includes  next  of  kin  and  those  who  take  under  the  statutes  of 
distribution  as  well  as  heirs  at  law."  The  courts  are  forced 
to  accept  this  definition  where  a  gift  of  personalty  is  to  one 
and  his  heirs,  or  to  one  for  life  and  then  to  his  heirs.^^ 

And  "where  certain  personalty  of  a  testator  who  was  child- 
less  and  whose  wife  was   past  the   age  of  childbearing  ^vas 
bequeathed  to  his  'heirs  at  law,'   and  upon  the  death  of  his 
widow  his  realty  was  devised  to  his    'heirs  at  law,'    it  was 
held  that  this  term  had  the  same  meaning  in  both  provisions, 
and  that  was  'next  of  kin.'  "  ^^     On  the  other  hand,^  when  a 
testator  made  a  devise  of  realty  with  remainder  to  his  "heirs 
at  law,"  and  also  provided  for  a  division  of  personalty  among 
his  "heirs  at  law,"  it  was  held  that  the  phrase  had  the  same 
meaning   in   both   places,    and   that  meaning   was   those   who 
would  take  land  by  descent  if  testator  had  died  intestate.^^' 
And  where  the  will  provides  for  a  conversion  of  realty  into 
personalty,   and  bequeaths  the  proceeds  arising  by  such  con- 
version to  the  "legal  heirs,"  this  expression  means  those  who 
would  take  personalty  under  the  Statute  of  Distributions  gov- 
eming.2i     -q^^^  this  is  only  a  prima  facie  rule  of  presumption 
as  to  the  meaning  of  the  term.      The  rest  of  the  will  may 
show  that  the  word  "heirs"  was  used  of  a  beneficiary  of  a. 
bequest  of  personalty  in  its  technical  legal  sense  in  the  pri- 
mary meaning  of  the  term-     The  provisions  disposing  of  per- 
sonaltv  mav  ^show  an  intent  not  to  use   "heirs"   as  meaning 
"next  of  kin."    Thus  a  bequest  to  the  "heirs"  of  a  niece  of  testa- 
is  McCrea's    Estate.    180    Pa.    St.      241;    Patterson  v.   Hawthon,   12   S. 
81,  citing     (where  the  gift  is  to  A       &  R.,  112;  McGill's  App.  61  Pa.  St. 


for    life    and    then    to    his    heirs) 


46. 


Comly's   Estate,    136    Pa.    St.    1.53;  i9  Swenson's  Estate,  55  Minn.  300. 

Neeley's   Estate,    155    Pa.    St.    133;  20  Forrest    v.    Porch,     100    Tenn. 


391. 


Ashton's   Estate,    134   Pa.   gt.    390; 
(where   the   gift   is   to   "A   and   his  21  Kendall   v.  Gleason,   152  Mass. 

heirs")    Eby's    Appeal,    84    Pa.    St.       457:   9  L.  R.  A.  509. 


604  LAW     OF     WILLS, 

tor's  was  held  to  be  the  ''heirs"  in  the  technical  sense  where 
such  niece  was  domiciled  in  another  state,  the  laws  of. which 
could  control  as  to  who  was  the  next  of  kin,  and  where  such  a 
bequest  was  connected  with  another  bequest  to  the  "heirs" 
of  another  niece  in  the  same  state.^- 

In  some  jurisdictions  "heirs"  is  held,  even  in  bequests  of 
personalty,  to  mean  those  upon  whom  the  law  would  cast  the 
descent  of  realty.^^ 

Where  the  word  "heir"  is  used,  not  with  reference  to  a 
beneficiary  under  the  will  but  to  a  testator,  it  is  held  in  some 
courts  that  even  in  gifts  of  personalty  it  means  the  common 
law  heirs.^* 

§516.     "Heirs"  including  legatees. 

The  word  "heir"  may  be  extended  to  include  "legatee." 
Thus  a  bequest  was  made  to  "heirs  resident  in  the  state." 
There  were  no  heirs  or  next  of  kin  of  testatrix  resident  in  the 
state,  but  there  were  legatees  under  the  will  resident  in  the 
state,  and  the  term  "heirs"  was  construed  to  include  all  the 
legatees  resident  in  the  state  who  were  natural  persons,  but 
excluding  cor])orations.^^ 

§517.     "Heirs" — restricted  meanings — "children." 

The  word  "heir"  may  be  so  restricted  by  the  context  as  to 
have  a  meaning  more  limited  than  its  technical  one.  Of  these 
restricted  meanings  "children"  is  perhaps   the  one  most  fre- 

22  Ruggles    V.    Randall,    70    Conn.  Pa.  St.  383.     "His  'right  heirs'  were 
44.  his    heirs    at   common   law,   and   he 

23  Mason  v.  Baily,  6  Del.  Ch.  129;  used  the  words  properly  as  words 
Gordon  v.   Small,   53  Md.   550.  of  purchase."     McCrea's  Estate,  180 

24Mounsey    v.    Blamire,    4    Russ.  Pa.  St.  81. 

384;    Hamilton   v.   Mills,    29    Beav.  25  Graham    v.    De    Yampert,    106 

193;  De  Beauvoir  v.  De  Beauvoir,  3  Ala.  279;   17  So.  355;   McKelvey  v. 

H.   L.   524;    In  re  Rootes,   1   Dr.  &  McKelvey,  43  O.  S.  213;  Corbley  v. 

Sm.   228;    Southgate  v.   Clinch,  27  Patterson,  3  Ohio  N.  P..  315;   Col- 

L.  J.  Ch.  651 ;  McCrea's  Estate,  180  Her  v.  Collier,  3  O.  S.  369. 
Pa.    St.   81;    Stewart'     Estate,    147 


LAW     OF     WILLS. 


605 


quently  thus  suggested. ^*^  Tkus  a  devise  is  not  infrequently 
given  to  one  of  two  or  more  brothers  and  sisters,  with  a  pro- 
vision that  if  such  devisee  should  die  without  heirs  capable 
of  inheriting,  the  share  of  such  decedent  shall  pass  to  the 
survivor  or  survivors.  In  such  case,  since  the  surviving 
brothers  and  sisters  are  heirs  in  the  technical  sense  of  the 
word,  and  under  the  provisions  of  the  will  one  can  not  die 
without  technical  "heirs"  while  his  brothers  and  sisters  sur- 
vive him,  the  word  must  have  a  restricted  meaning,  which 
must  be  that  of  "children."  ^'^ 

So  a  devise  to  "the  heirs  of  S.  D.  that  she  now  has,  and 
to  the  heirs  of  A.  M.,  should  they  arrive  to  the  age  of  twenty- 
one,  and  in  case  they  should  not  I  give  and  devise"  to  others, 
the  word  heirs  was  held  to  mean  children.^® 

§518.     "Heirs  of  the  body." 

The  word  "heirs"  may  be  so  used  as  to  show  an  intention 
to  restrict  its  meaning  to  "heirs  of  the  body,"  or  lineal  de- 
scendants or  issue  living  at  his  decease.^^     So  where  "lawful 

26  xAnthony  v.  Anthony,  55  Conn.  tate  of  Mrs.   MacNeil   should   upon 

256;     McCartney     v.     Osburn,     118  her    death    without    heirs,    pass    to 

111.   403;    Kellett   v.    Shephard,    139  her    brother    by    way    of    executory 

111.  433;   Fishback  v.  Joesting,  183  devise    in    the    ease    that   the    term 

111.    463;    Allen   v.    Craft,    109    Ind.  was   not  \ised   in   that   sense.      The 

476;    Barton    v.    Tuttle,    62    N.    H.  testator  could  not  have  contempla- 

558 ;  Eldridf^e  v.  Eldridge,  41  N.  J.  ted  the  death  of  one  of  his  children 

Eq.  89;   Bunnell  v.  Evans,  26  0.  S.  without  heirs  while   the  other   sur- 

409;  Hoag^land  v.  Marsh.  4  Ohio  C.  vived.     We  think  the  testator  used 

C.    31 ;    Evan's   Estate,    155   Pa.   St.  the  term  as  meaning  children."  Dur- 

646;  Hayne  v.  Irvine,  25  S.  C.  289;  fee  v.  Mac  Neil,  58  0.  S.  238. 

Franklin  v.  Franklin,  91  Tenn.  119.  28  Barton  v.  Tuttle,  62  N.  H.  558. 

2T  Young   V.    Harkleroad,    166   111.  29  Rollins  v.  Keel,  115  N.  Car.  68. 

318;    Francks  v.   Whitaker,   116  N.  (A    devise   to   A,    and    if   he      died 

Car.   518  ;    Durfee   v.   Mac   Neil,   58  "without  lawful  heir"  to  his  widow 

0.    S.    238 ;    Jones   v.   Lloyd,    33    O.  for  life,  with  remainder  over.     The 

S.  572 ;   Boyd  v.  Robinson,  93  Tenn.  widow  was  heir  by   statute,  but  as 

1  ;    Franklin   v.   Franklin,   91   Tenn.  the    context    showed    that    "lawful 

119.  heir"    meant    "issue,"    she    did    not 

In  construing  one  of  these  wills  take  the  fee.)      So  Snider  v.  Snider, 

the    court    said:    "Since    a    brother  160  N.  Y.   151;   Canfield  v.  Fallon, 

is   an  heir   in   the  general   sense  of  161  N.  Y.  623;  162  N.  Y.  605;  55  N. 

the  term,  the  provision  that  the  es-  E.  1093. 


606 


LAW     OF     WILLS. 


begotten  heirs''  is  used,  it  means  "heirs  of  the  body."  ^^  Thus 
a  devise  over  if  a  son  should  die  "without  heirs  of  his  own" 
has  been  held  to  mean  heirs  of  the  bodj.^^ 

§519.     "Heir"  meaning  grandchildren. 

The  word  "heir"  may,  bj  force  of  the  context,  exclude  chil- 
dren and  include  only  grandchildren.  Thus,  where  testator 
devised  one-half  of  his  real  estate  to  a  named  son  and  the  other 
half  to  be  divided  among  testator's  "legal  heirs,"  it  was  held 
that  the  term  "legal  heirs"  could  only  apply  to  testator's 
grandchildren  and  that  the  named  son  must  be  excluded.^^ 

§520.     "Heir"  including  illegitimate  children. 

The  primary  meaning  of  the  word  "heir"  is,  under  com- 
mon law  definitions,  restricted  to  legitimate  descendants  of 
the  stock  of  the  ancestor  who  trace  each  step  of  descent  through 
legitimacy.  Under  our  modern  statutes  it  is  provided  in  many 
states  that  a  child  born  illegitimate  may  be  subsequently  made 
legitimate.  In  some  states  this  is  to  be  effected  simply  by  open 
recognition  on  the  part  of  the  father  of  the  child  as  his.  In  other 
jurisdictions  an  illegitimate  child  can  be  made  legitimate  only 
by  the  subsequent  intermarriage  of  his  parents  and  their  recog- 
nition of  the  child  as  their  own  ;  and  it  is  also  provided  in  many 
jurisdictions  that  an  illegitimate  child  may  inherit  from  its 
mother. 

The  question  under  construction  presented  by  these  statutes 
is  as  to  the  effect  of  a  devise  to  the  "heirs"  of  a  specified  person 
when  such  person  had  an  illegitimate  child  who  would  inherit 
from  him  under  the  statutes  already  referred  to.  The  weight 
of  authority  is  that  a  devise  to  "heirs"  includes  such  illegitimate 
descendants  as  would  inherit  from  the  designated  ancestor  under 
the  statutes  of  descent  and  distribution.^^ 


30  Good  V.  Good,  7  El.  &  Bl.  295;  citing  Jones  v.  Miller,  13  Ind.  337; 
Holt  V.  Pickett,  111  Ala.  362;  Clarke  Ridgeway  v.  Lanphear,  99  Ind.  251 ; 
V.   Smith,  49  Md.    106.  Underwood    v.     Robbins,     117     Ind. 

31  Abbott  V.   Essex   Co.,    18   How.  308. 

(U.  S.)   202.  33  Johnson  v.  Bodine,  108  lo.  594: 

32  Griffin   v.    Ulen,    139    Ind.    505,  Ives  v.  McNicoll,  59  0.  S.  402. 


LAW     OF     WILLS.  607 

A  devise  to  the  "heirs  by  blood"  of  testator's  niece  includes 
her  illegitimate  son  where,  ulider  the  statute  of  descent,  he 
would  take  as  heir  of  his  mother  if  she  died  intestate.^* 

Since  status  is  fixed  hj  domicile,  a  natural  child,  who  io 
legitimated  by  marriage  of  parents  domiciled  in  Cuba  under 
the  laws  thereof,  can  take  under  a  devise  to  "heirs."  ^^ 

Thus  where  testator  devised  property  to  his  son  A  for  life, 
remainder  to  the  "heirs  of  his  body,"  it  was  held  that  the 
term  "heirs  of  his  body"  included  a  child  born  illegitimate, 
the  offspring  of  adulterous  intercourse  with  a  married  woman, 
whose  parents  had  intermarried  after  the  divorce  of  its  mother 
from  her  first  husband,  and  whose  father  had  recognized  it  a^^ 
his  child.^^ 

§521.     Next  of  kin. 

"The  words  'next  of  kin'  do  not  of  themselves  impart  "suc- 
cession ab  intestato,'  and,  taken  alone,  mean  nothing  more 
than  nearest  blood  relations ;  and  unless  there  is  something 
more  in  the  will  indicating  that  the  testator  intended  statutory 
next  of  kin,  or  that  the  property  should  be  distributed  as  in- 
testate property,  the  words  must  have  their  customary  mean- 
ing." 37 

The  words  "next  of  kin"  in  a  will  mean  the  nearest  blood 
relations,  and  not  all  those  who  would  take  under  the  Statute 
of  Distributions.^^  Thus  "next  of  kin"  means  a  brother  in 
preference  to  nephews,  sons  of  a  deceased  brother  f^  and  nieces 
in  preference  to  grandnieces.'*^ 

34llayden   v.   Barrett,   172   Mass.  690;     150    Mass.    225;     Swasey    v. 

472.  Jaques,  144  Mass.  135;  Redmond  v. 

35  De   Wolfe  v.   Middleton,   18   R.  Burroughs,  63  N.  Car.  242 ;   Daven- 
I.  810.  port  V.  Hassel,  Busb.  Eq.  (N.  Car.), 

36  Ives  V.  McNicoll,  59  0.  S.  402.  29 ;  Wright  v.  M.  E.  Church,  Hoff. 

37  Swasey    v.    Jaques,    144    Mass.  Ch.   (N.  Y.),202. 

135.  39  Swaaiey    v.    Jaques,    144    Mass. 

38  Withy  V.  Mangles,  10  CI.  &  F.       135. 

215;    Harris  v.   Newton,   25   W.   R.  4o  McComas  v.  Amos,  29  Md.  120; 

228;    Fargo   v.   Miller,   5   L.   R.   A.      Garrison  v.  Hill-  81  Md.  206. 


608 


LAW     OF     WILLS. 


§522.     Children. — Primary  meaning. 

The  primary  meaning  of  "children"  is  the  immediate  legiti- 
mate olf spring  of  the  person  indicated  as  the  parent."*^ 

A  bequest  to  a  "child"  includes  "children"  when  there  is 
more  than  one.''^ 

A  child  en  ventre  sa  mere  is  considered  in  law  as  a  child 
m  esse,  and  is  included  in  a  devise  to  the  "children"  of  its 
parents  generally,^^  Stepchildren  are  not  ordinarily  included 
in  a  devise  to  "children.^^  And  where  testator  married  for  his 
second  wife  a  widow  with  one  child,  and  in  his  will  made  a 
devise  to  "my  first  children,"  and  then  provided  "I  desire  that 
my  present  wife  and  her  children  shall  have"  certain  specified 
property,  it  was  held  that  the  devise  to  "her  children"  included 
only  her  children  by  testator.*'^ 

A  devise  to  "children"  does  not  ordinarily  include  illegiti- 
mate children.""^  But  children  born  illegitimate,  who  are  sub- 
sequently rendered  legitimate  by  the  means  provided  by  stat- 
ute, are  included  under  a  devise  to  the  "children"  of  such 
parent.^''  More  remote  legitimate  descendants,  such  as  grand- 
children and  great-grandchildren,   are  not  included   in  a  de- 


41  Arnold  v.  Alden,   173  111.  229 ; 
Pugh  V.  Pugh,  105  Ind.  552;  Ward 
V.    Cooper,   69   Miss.   789;    Dunn   v. 
Cory,  56  N.  J.  Eq.  507  ;  Hone  v.  Van 
Schaick,   3  N.   Y.   538;    Shannon  v. 
Pickell,   8   N.   Y.    S.   584;    55   Hun, 
127;  Guernsey  v.  Guernsey,  36  N.  Y 
267 ;  Magaw  v.  Field,  48  N.  Y.  668 
Palmer    v.    Horn,    84    N.    Y.    516 
Wylie  V.   Loekwood,   86  N.  Y.  291 
Hunt's    Estate,    133    Pa.    St.    260 
Mcintosh's  Estate,  158  Pa.  St.  528 
Lytle   V.    Beveridge,    58   N.    Y.    592 

42  Dunn  V.  Cory,  56  N.  J.  Eq 
507. 

43 /n  re  Burrows  (1895).  2  Ch. 
497;  13  Reports,  689;  McLain  v. 
Howald,  120  Mich.  274;  79  N.  W. 
182;  Starling  v.  Price,  16  O.  S.  29. 

44  Kurtz's  Estate,  145  Pa.  St.  637. 
(This  is  especially  where  as  in  this 
case  testator  carefully  distinguished 


step-children  from  his  own  children 
by  providing  in  the  will  for  them 
as  children  which  came  to  him  by 
marriage.)  Lawrence  v.  Hebbard, 
1  Bradf.  252 ;  In  re  Hallet,  8  Paige, 
375. 

45  Blankenbaker  v.  Snyder  ( Ky. ) , 
36  S.  W.  1124;  Bolton  v.  Bolton,  73 
Me.  299. 

46Dorin  v.  Dorin,  L.  R.  7  H.  L. 
568;  Hill  v.  Crook,  L.  R.  6  H.  L. 
265;  Flora  v.  Anderson,  67  Fed. 
Rep.  182;  Hicks  v.  Smith,  94  Ga. 
809;  Kent  v.  Barker,  2  Gray,  535; 
Adams  v.  Adams,  154  Mass.  290: 
Haraden  v.  Larrabee,  113  Mass. 
430. 

47  Grey's  Trusts  (1892),  3  Ch. 
88. 

Contra,  Hicks  v.  Smith,  94  Ga, 
809. 


LAW    OF    WILLS.  ^^^ 

vise  to  "children"  when  there  are  chiklren  in  existence  to 
whom  the  name  evidently  applies,  and  there  is  nothing  in  the 
context  to  show  that  testator  used  the  word  in  a  more  extended 


meaning 


,.  4S 


A  devise  was  to  testator's  children  for  life,  "and  on  the  de- 
cease of  either  of  the  above-named  children  leaving  a  child  or 
children,  the  proportion  of  such  deceased's  child's  income  to 
such  child  or  children.'^  A  child  who  had  a  life  interest  died 
leaving  a  child  and  some  grandchildren,  children  of  a  deceased 
child.  "^  It  was  held  that  the  devise  inured  only  to  the  benefit 
of  the  surviving-  child  to  the  exclusion  of  the  grandchildren.^^ 

§523.     Extended  meaning  of  "children." 

But  the  primary  meaning  of  children  is  not  an  unyielding 
and  rigid  one.  The  will  itself,  or  the  surrounding  facts  and 
circumstances,  mav  give  to  it  a  broader  meaning,  though  hard- 
ly a  narrower  one.^«  Thus  a  devise  by  a  testator  who  had 
been  married  twice,  and  left  children  by  each  marriage,  to  "our 
children"  was  held  to  include  his  children  by  each  marriage.^^ 
Thus  in  a  gift  to  two  sons,  and  if  they  or  either  should  die 
without  issue  then  to  "my  other  children,"  it  was  held  that 
on  the  death  of  one  son  without  issue  the  other  son  was  one 
of  the  "ether  children"  to  Avhom  the  estate  passed.^^ 

How  Ftrong  the  necessity  of  the  case,  or  the  necessary  impli- 
cations must  be  in  order  to  extend  the  meaning,  is  a  proposi- 
tion upon  which  in  the  abstract  form  of  statement  the  courts 

48  Arnold  V.  Aklen,  173  111.  229 ;  333 ;  Tillmghast  v.  De  Wolfe  8  R.  I. 

Annable    v.    Patch,     3    Pick.     360;  09:    Winsor   v.    Odd   Fellow  sAsso- 

Ward  V.  Cooper,  G9  Miss.  789 ;  Feit  elation,  13  R.  L  149  :  Neal  v^  Hodges 

V  Van  Atta,  21  K  J.  Eq.  83;  Howe  (Tenn.   Ch.    App.    1899).   48   S.   W. 

V  Van   Schaick,   3   N.   Y.    538;    In       263  ( affirmed  Supreme  Court ) . 

re    Sanders,    4    Paige,    293;    Stokes  ''o  Bragg     v.     Carter,    1/1     Mass. 

V.   Stokes    (Ohio),    12   Weekly  Law  324. 

Bull.    135;    Hunt's   Estate,   133   Pa.  -Ward  v.  Cooper,  69  ^I.ss.  789 

St    260;    Guthrie's   Appeal,    37    Pa.  ^i  Crosson  v.   Dwyer,   9  Tex.   Cir. 

St.   9:   Tinglev  v.  Harris,  20  R.   I.  App.    482. 

517;   Williams  v.  Knight,   18  R.   I.  ^^  Brooks   v.    Iv>p,    54    N.    J.    Eq. 

462. 


610  LAW    OF     WILLS. 

do  not  fully  agree,^^  and  which  is  better  presented  in  the  con- 
crete by  a  discussion  of  the  various  extended  meanings  which 
the  word  may  assume. 

§524.     "Children"  including  grandchildren. 

The  context  and  the  surrounding  circumstances  may  show 
that  the  word  "child"  means  grandchild.^^  Children  may  mean 
grandchildren  ;^^  or  great-grandchildren.^^  Thus,  where  a 
will  save  a  devise  to  certain  of  testator's  children  and  their 
"heirs,"  providing  that  "if  any  of  said  heirs  of  mine  should 
die  leaving  no  child  or  children"  the  share  of  such  person 
should  be  divided  among  the  survivors,  it  was  held  that  the 
context  showed  that  the  words  "child"  or  "children"  were 
sjTionymous  with  the  word  "heirs"  in  the  prior  devise  and  thus 
included  grandchildren  and  great-grandchildren.^'^  Facts  out- 
side the  Vvill  may,  furthermore,  show  that  the  intention  of  the 
testator  was  to  use  the  word  "children"  as  inclusive  of  grand- 
children and  great-grandchildren,  and  as  practically  synony- 
mous with  issue.^*  Where  a  devise  is  made  to  the  "children" 
of  one  vho  has  been  married  and  had  children  and  grand- 
children, and  the  children  have  died,  so  that  at  the  time  of 
making  the  will  he  has  only  grandchildren,  such  devise  to  the 
"children"  is  held  to  include  grandchildren.^^ 


53  Arnold  v.  Alden,  173  111.  229 
Cummings  v.  Plummer,  94  Ind.  403 
Ward    V.    Cooper,     69     Miss.     789 


55  Bowker  v.  Bowker,  148  Mass. 
198 ;  Brokau  v.  Peterson,  2  MeCart. 
194;  Feit  v.  Vanatta,  6  C.  E.  Green, 


Hunt's    Estate,     133    Pa.    St.    260.  84. 

A  mere  marginal  note,  or  memo-  56  Miller      v.        Carlisle        (Ky. ) 

randum,  on  a  will  devising  all  tes-  (1890).  14  S.  W.  75. 

tator's  property  to  his  children,  to  st  Miller      v.       Carlisle         (Ky.) 

the   effect   that   the   personal   estate  (1890),    14    S.   W.   75. 

is  to  be  divided  equally  among  the  58  See  cases  in  preceding  notes  un- 

"heirs,"  will  not  have  the  effect  of  der   this   section, 

extending    the    sense    of    the    word  59  Gale    v.    Bennett,    Amb.    681; 

"children"     so     as     to     comprehend  Fenn  v.  Death,  2  Jur.   (N.  S.),  700; 

grandchildren.    7n  re  Hunt's  Estate,  23    Beav.    73:    Earl    of    Oxford    v. 

133  Pa.  St.  260.  Churchill,   3  V.  &  B.,  59:   Crook  v. 

5*  Prowitt   v.   Rodman,   37   N.   Y.  Brookeing,  2  Vern.   107 ;   Reeves  v. 

42 ;     Scott    V.    Guernsey.    48    N.    Y.  Brymer.   4  Ves.   692 :    B^rry  v.   Ber- 

106;     Douglass    v.    James.    66    Vt.  ry,  3  Giff.  134,  7  Jur.   (X.  S) .  752; 
21;    Radcliffe    v.    Buckley,    10    Ves. 
195. 


LAW    OF    WILLS.  611 

§525.     "Children"  including  illegitimate  children. 

The  term  "children"  may  be  extended  by  the  terms  of  the 
will  itself,''*^  or  by  the  surrounding  facts  and  circumstances,^^ 
so  as  to  include  illegitimate  children.  Thus  where  the  illegiti- 
mate child  was  the  otTspring  of  open  and  notorious  cohabita- 
tion, and  the  will  speaks  of  the  parties  as  husband  and  wife, 
and  refers  to  the  illegitimate  offspring  specifically  as  "chil- 
dren" of  the  designated  parents,  it  is  held  that  a  subsequent  de- 
vise generally  to  the  "children"  of  such  parents  will  include 
illegitimate  children.^^ 

Extrinsic  evidence  of  the  surrounding  facts  and  circum- 
stances may  serve  to  extend  the  meaning  of  "children"  to 
illegitimate  children.  Thus,  evidence  that  the  parents  of  the 
illegitimate  children  lived  together  as  husband  and  wife,  and 
were  recognized  as  such  by  testator^  may  serve  to  show  that 
in  the  "children"  of  such  parents,  spoken  of  in  the  will,  the 
illegitimate  children  were  included.^^ 

Where  the  illegitimate  child  is  not  testator's,  it  is  held,  in 
some  jurisdictions,  that  even  though  it  is  legitimated  subse- 
quently, it  can  not  take  under  a  devise  to  the  "children"  of  its 
parent  without  anything  further  to  show  that  such  children 
were  to  be  included,  as  the  statute  making  them  legitimate  did 
not  have  such  effect  for  all  purposes,  but  only  to  enable  them  to 
take  by  descent  from  their  f ather.^^ 

§526.     Issue  and  offspring 

Issue  is  a  word  whose  primary  meaning,  in  the  absence  of 
anything  to  show  a  contrary  intent,  is  that  of  legitimate  lineal 

In  re  Smith,  35  Ch.  Div.  558:  Dunn  ^^  In  re  Harrison    (1894),   1    Ch. 

V.  Cory,  56  N.  J.  Eq.  507.  561 ;   In  re  Humphries,  24  Ch.  Div. 

A   devise   to   "the  youngest  child  691;   Hill  v.   Crook,  L.   R.   6  H.  L. 

which    shall    hereafter    be    born    of  265 ;    Dickison    v.    Dickison,    39    111. 

all  my  said  children,"  was  held  to  App.   503;    Sullivan  v.   Parker,   U3 

mean     testator's     youngest     grand-  N.  Car.   301. 

child.     Otterback  v.  Bohrer,  87  Va.  ^^In  re  Harrison    (1894).    1    Ch. 

548.  501;     Sullivan    v.    Parker,    113    N. 

60  Flora    v.    Anderson,     67     Fed.  Car.    301. 

182.  64  Hicks  v.   Smith,  94  Ga.  809. 

61  In    re   Jeans,    13   Rep.    627;^  In 
re  Bvron,  30  Ch.  Div.  112. 


612  LAW     OF     WILLS. 

descendants  indefinitely.^''  Tke  rule  tLerefore  is,  that  the 
word  "issue"  in  its  general  sense,  in  the  absence  of  any  indi- 
cation of  intention  to  the  contrary,  includes  in  its  meaning  de- 
scendants generally.  "^"^ 

But  the  context,  the  entire  will,  or  the  surrounding 
circumstances  may  modify  this  primary  meaning.^^  The 
courts  which  adhere,-  to  the  first  meaning  concede 
that  "issue"  is  amhiguous.^^  Thus  where  "issue"  is  correlated 
with  "parent,"  as  where  the  "issue"  are  indicated  as  the  sub- 
stitutional beneficiaries  of  their  deceased  "parent,"  it  ordina- 
rily means  children.^^  "Where  the  word  ^issue'  is  used  with 
reference  to  the  parent  of  such  issue,  as  where  the  issue  is  to 
take  the  shares  of  the  deceased  parent,  it  must  mean  his  chil- 
dren; that  is,  the  word  'parent'  confines  the  word  'issue'. "'''^ 
This  me&ning  may  be  rebutted  by  the  context.  Thus,  in  a 
gift  of  eleven  legacies  to  "children"  and  a  twelfth  to  "issue," 
it  was  held  that  the  word  "issue"  in  the  twelfth  legacy  was 
carefully  inserted  as  not  synonymous  with  "children."  "^^ 
Where  the  word  "issue"  is  used  in  this  manner  in  one  clause 
of  the  will  with  the  meaning  of  "children,"  it  will  be  pre- 
sumed to  be  used  in  the  same  sense  in  another  clause  of  the 
will  with  the  same  meaning.'^-       The    primary    meaning    of 

65  Weldon  v.  Hoyland,  4  De  G.  F.  statute  they  could  inherit  from  her. 

&  J.    504;    Bigelow  v.   Moiong,    103  Gibson  v.  McNeely,   11   0.  S.  131. 
Mass.  287;   Hall  v.  Hall,  140  Mass.  66  Chwatal  v.  Schreiner,148  N.  Y. 

267;    Dexter    v.    Inches,    147    Mass.  683. 

324;  Jackson  v.  Jackson,  153  Mags.  67  Arnold  v.   Alden,   173   111.   229. 

374;   11  L.  R.  A.  305:  Hills  v.  Bar-  68  Palmer  v.  Horn,  84  N.  Y.  510: 

nard,  152  Mass.  07  :  9  L.  R.  A.  Chwatal  v.  Schreiner,  148  N.  Y.  683. 
211;   Weehawken  Ferry  Co.  v.  Sis-  69  Arnold  v.  Alden,   173  111.  229; 

son,   17  N".  J.  Eq.  475;   Chwatal  v.  Chwatal    v.    Schreiner,    148    N".    Y. 

Schreiner,    148    N.    Y.    683;    Drake  683. 

V.  Drake,   134  N.  Y.  220;    Soper  v,  to  Madison    v.    Larmon,    170    111. 

Brown,    136    N.    Y.    244:    Ward    v.  65,   citing   Fairchild   v.   Buchell.   32 

Stow,    2    Der.    Eq.    509;    Moon    v.  Bear.   158;    Sibley  v.  Perry,   7   Ves. 

Hapford    (Com.  PL),  2  Ohio    N.  P.  Jun.    552;     Arnold    v.    Alden,    173 

365;    3   Ohio   Dee.    508:    Robins   v.  111.    229:    Drake   v.    Drake,    134   N. 

Quinliven,   79   Pa.   St.    333;    Pearce  Y.  220:   17  L.  R.  A.  004. 
V.  Rickard,  18  R.  I.  142;  19  L.  R.  A.  "  /„  re  Birks   (1899),  1  Ch.  703; 

472.  68  L.  J.  Ch.  N.  S.  319. 

Illegitimate  children  are  therefore  72  Madison    v.    Larmon,    170    111. 

excluded    even    though    the    devise  05. 
is  to  their  mother,  and  by  the  local 


LAW     OF    WILLS. 


613 


"issue"  as  given  above  has  been  questioned.  "  ^Issue/  in  its 
primary  signification,  imports  'children'  ...  It  is  a  second- 
ary meaning  by  which  it  has  been  hehl  to  include  the  issue  of 
issue  in  an  indefinitely  descending  line."  '^^  So  in  another  case 
a  devise  in  trust  for  A,  and  at  his  decease  to  his  issue,  was  held 
to  mean  to  his  children.'^^ 

It  is  possible  for  testator,  by  the  context  and  associations 
of  the  will,  to  restrict  the  meaning  of  "children"  to  that  of 
"sons,"  though  such  restriction  can  be  made  only  or  a  very 
clear  intent  of  testator  as  manifest  in  the  will.'^^ 

An  adopted  illegitimate  child  is  not  "issue"  of  the  adopting 
parent  so  as  to  defeat  a  remainder  contingent  upon  the  death 
of  such  person  without  issue.'^^ 

"Offspring"  is  said  to  be  synonymous  with  issue. '^^  It  in- 
cludes lineal  descendants,  however  remote  in  degree. '^^ 

§527.     Descendants. 

A  descendant  is  "one  who  descends  as  offspring,  however  re- 
motely; correlative  to  ancestor  or  ascendant." '^^  The  term 
includes  the  most  remote  lineal  offspring,  and  is  practically 
sjTionymous  with  "issue"   in  its  legal  meaning.^*^      Hence  it 

73  Thomas    v.    Levering,    73    Md.  son  v.  Sykes,  23  Beav.  40,  51;   Or- 
451,    citing    Carter    v.    Bentall,    2  ton's  Trust,  L.  R.  3,  Eq.   375. 
Beav.    552;    2    Redf.    on    Wills,    p.  75  Weatherhead  v.  Baskerville,  11 
38  n.  5:     In  this  case  a  devise  vpas  How.    (U.  S. ),  329. 

made    to    devisee's    "issue,    children  76  Wyeth  v.  Stone,  144  Mass.  441 ; 

or  descendants,"  per  capita,  and  not  Jenkins   v.   Jenkins,   64   N.   H.   407. 

per  stirpes;  and  the  living  children  Contra,   Hartwell   v.   TefYt,   19   R. 

and  the  descendants  of  the  deceased  I.   644;    34   L.   A.   R.   500    (adopted 

children   were  held   to   take  to   the  only,  not  illegitimate) . 

exclusion  of  the  children  of  the  liv-  77  Mitchell  v.  Ry.  165  Pa.  St.  645. 

ing  children.  78  Thompson  v.   Beasley,   3   Drew- 

74  Dexter    v.    Inches,    147    Mass.  ry,  7 ;  Young  v.  Davies,  2  Dr.  &  Sm. 
324.     The  court  said  that  they  en-  167;    Barber   v.   Ry.    166   U.    S.   83; 
tertained   this   view,    "however     the  Allen  v.  Markle,  36  Pa.  St.   117. 
English    courts   would   construe    the  79  Tichenor    v.    Brewer's    Ex'r,    98 
word    'issue'    in    the    clause    before  Ky.  .349;   33  S.  W.  86. 

us,"   and   citing,   but   not  following,  «"  Bates   v.    Gillett,    132    111.    287: 

the  following  cases  in  which  "issue"  Tichenor   v.    Brewer's   Ex'r,   98   Ky. 

was    held    to    show    representation.  349;    33   S.   W.   86. 
Ross  V.  Ross,  20  Beav.  645 ;   Ivobin- 


614 


LAW     OF     WILLS. 


excludes  collateral  relations  f^  nor  does  it  include  relatives  in 
the  ascending  line.*^ 

§528.     Family. 

At  one  time  the  word  "family"  was  held  to  be  of  a  meaning 
so  uncertain  that  a  devise  to  a  "family"  of  a  named  person 
was  void  for  uncertainty;*^  and  trusts  generally  for  the  bene- 
fit of  the  "family"  of  a  designated  person  have  been  held  void 
for  uncertainty.^^  This  extreme  view  has  since  been  aban- 
doned by  the  courts  with  substantial  unanimity,  and  "family" 
is  held  to  be  a  word  of  such  definite  meaning  when  employed 
in  a  will  that  a  devise  to  a  "family"  of  a  person  is  valid.  But 
what  that  meaning  is,  is  not  so  unanimously  agreed  upon  by 
the  courts.  Probably  the  statement  once  made  by  an  Alabama 
court  that  it  is  a  term  "of  more  or  less  extensive  import,  ac- 
cording as  the  context  of  the  will  may  indicate,"  may  stand 
as  fairly  representative  of  the  consensus  of  judicial  opinion.*' 
Thus  in  some  jurisdictions  "family"  includes  the  wife  and 
children  of  testator  resident  at  the  homestead  together  with 
such  servants  as  are  there  residing.*^  And  in  carrying  out  this 
theory  to  a  logical  conclusion,  children  of  the  party  designated 
who  have  reached  full  age,  and  who  live  away  from  the  paren- 


81  Bates  V.  Cxillett,  132  111.  287; 
Tichenor  v.  Brewer's  Ex'r,  98  Ky. 
349  (such  as  half-brothers  and  sis- 
ters) ;  Baker  v.  Baker,  8  Gray 
(Mass.),    101. 

Contra  as  to  the  meaning  in 
Ohio,  Turler  v.  Turley,  11  0.  S. 
173,  where  it  is  said  that  the  word 
descendants  "includes  both  lineal 
and  collateral  relations — all,  in 
short,  that  would  take  the  estate 
under  the  statute  of  descents  if  ( tes- 
tator) had  died  intestate.  All  such 
persons  may  not  be  in  fact,  but  they 
are  in  laic,  the  descendants  of  the 
person  from  whom  they  receive  the 
estate." 

82  Tichenor  v.  Brewer's  Ex'r,  98 
Ky.    349;    33    S.    W.    86     (such    as 


mother)  ;  Mitchell  v.  Thorne,  134 
N.  Y.  536;  Schmaunz  v.  Goss,  132 
Mass.  141. 

(A  devise  to  A  and  his  "descend- 
ants" was  held  not  to  mean  a  de- 
vise to  A  and  "the  heirs  of  his 
body,"  since  the  devise  to  A  was 
prima  facie  a  fee  simple,  and,  there- 
fore, was  not  cut  down  by  words 
of   doubtful    import. ) 

83  Harland  v.  Trigg,  1  Bro.  C.  C. 
142:  Robinson  v.  Waddelow,  8  Sim. 
134. 

84  Warner  v  Rice,  66  Md.  436. 

85  Rugely  v.  Robinson,  10  Ala. 
702. 

86  IRickabee  v.  Swoope,  20  Ala. 
491;   Wood  v.  Wood,  63  Conn.  324. 


LAW     OF     WILLS. 


615 


tal  domicile,  are  held  to  be  not  included  within  the  meaning 
of  "family."  ^^  In  other  jurisdictions  the  primary  meaning  of 
''family"  is  held  to  be  that  of  "children"  unless  the  context 
indicates  a  different  signification.^^  So  a  devise  to  A's  family 
has  always  been  held  to  exclude  A.^^  It  has  also  been  said  to 
mean  "next  of  kin"  in  its  primary  signification.^*'  In  juris- 
dictions where  the  word  "family"  means  either  "children"  or 
"next  of  kin,"  it  makes  no  difference  whether  the  children  or 
next  of  kin  live  with  the  person  whose  "family"  is  the  object 
of  testator's  bounty  or  not.  Thus,  where  a  son  of  A  by  A's 
first  marriage  removed  from  A's  home  upon  A's  second  mar- 
riage, it  was  held  that  a  devise  to  support  A  or  his  "family" 
would  include  the  support  of  this  son.^^  The  term  "family," 
as  used  in  a  will  to  indicate  beneficiaries,  does  not  in  its  pri- 
mary signification  include  stepchildren,  even  when  they  live 
with  the  person  designated  as  the  head  of  the  family.^- 
Whether  the  term  "family"  includes  the  wife  or  widow  of 
the  person  designated  as  the  head  of  the  family  is  a  question 
of  some  difficulty.  In  jurisdictions  in  which  the  primary  sense 
of  "family"  is  members  of  the  same  household,  a  devise  to  one's 
family  is  held  to  include  his  wife.®^  And  a  devise  to  be  used 
for  the  support  of  "the  family"  of  a  designated  person  is 
usually  held  to  include  the  wife  of  such  person.®^     But  in  a 

87  Wood   7.   Wood,   63   Conn.   324,       604 ;    Wallace   v.   M'Micken,   2   Dis- 
citing  and  following  Hart  v.  Gold-       ney  (Ohio),  564. 

smith,    51    Conn.    479;    Bradlee    v.  so  Smith    v.    Greeley,    67    N.    H. 

Andrews,    137    Maas.    50;    Bates   v.  377. 

Dewson,    128    Mass.    334;    Kain    v.  9i  Smith  v  Greeley,  67  N.  H.  377 ; 

Fisher,  6  N.  Y.  597.  30  Atl.  413. 

88  pigg    V.    Clarke,    3     Ch.     672 ;  92  Bates    v.    Dewson,    128    Mass. 
Gregory  v.  Smith,  9  Hare,  708;    15  334. 

Eng.  L.  &  Eq.  202 ;    Snow  v.   Teed.  93  Cosgrove  v.  Cosgrove,  69  Conn. 

L.  R.  9  Eq.  622 ;  Beales  V.  Crisford,  416;    Bates   v.    Dewson,    128    Mass. 

13   Sim.   592;   In  re  Muflfett,  55  L.  334;    Langmaid  v.   Hurd,   64  N.   H. 

J.      671;      Flournoy      v.      Johnson,  526. 

7    B.    Mon.     (Ky.),    693;    Heck    v.  94  Ruprpiy    v.    Robinson,    10    Ala. 

Clippenger,   5   Pa.   St.   385;    Alsop's  702;    Bowditch  v.   Andrew,  8  Allen 

App.  9  Pa.  374;  White  v.  White,  30  (Mass.),    339;    Bradlee   v.    Andrew, 

Vt.    338;    Phillips   v.   Ferguson,   85  137    Mass.    50;    Smith    v.    Greeley, 

Va.  509;   1  L.  R.  A.  897.  67    N.    H.    377;    White    v.    White, 

89  Barnes    v.    Patch,    8    Ves.  Jr.  30  Vt.  338. 


616  LAW     OF     WILLS. 

gift  to  "the  surviving  members  of  mj  brother's  and  sister's 
families,  which  are  above  named,  in  equal  parts,"  it  was  held 
that  "family"  meant  "stock,"  and  the  beneficiaries  were  the 
children  of  the  persons  named,  excluding  surviving  spouses.''^ 

§529.     Relatives. 

The  popular  meaning  of  the  word  "relatives"  or  "relations" 
is  that  of  all  persons  within  any  degree  whatever  of  consan- 
guinity or  affinity.^^  But  when  the  word  "relations"  is  used 
in  a  will  to  denote  a  class  of  beneficiaries,  it  is  settled  that  the 
law  imposes  a  technical  meaning  and  not  the  popular  one. 
The  primary  meaning  of  "relatives"  or  "relations"  is,  such  per- 
sons as  would  take  under  the  statutes  of  descent  and  distribu- 
tions if  testator  had  died  intestate.^'^ 

This  primary  meaning  may,  however,  be  modified  by  the  con- 
text or  by  the  surrounding  circumstances.  Thus  where  testator 
has  in  one  clause  of  his  will  enumerated  certain  persons  as 
his  "nearest  relations,"  it  will  be  presmned  that  the  same  ex- 
pression in  a  later  clause  includes  the  same  persons. ^^ 

The  primary  meaning  of  "relatives,"  of  course,  imports  le- 
gitimacy. But  this  meaning  may  be  extended  by  the  context. 
Thus  certain  persons  who  were  related  to  testator  by  blood,  but 
were  illegitimates,  were  referred  to  by  him  in  his  will  as 
"cousins."  It  was  held  that  these  persons  could  take  under  a  be- 
quest to  testator's  "relatives  hereinbefore  named,"  especially 
since  the  bequest  to  these  "relatives"  would  be  a  bequest  to  one 
person  only,  if  the  illegitimate  relations  were  excluded.^^ 

95  Hoadley    v.    Wood,     71     Conn.  201  ;  Handley  v.  Wrio^htson,  60  Md. 

452.       (The    court    laid    down    the  198;    Varrell  v.   Wendell,   20  N.  H. 

general    rule    that    "family"    in    a  4,31  :    Hall  v.  Wiggin,   67   N.   H.  89 

gift   to   the   "family"   of   A,   seldom  (1894);    29   Atl.    671. 

includes  the  wife  unless  A  (the  hus-  as  Hall  v.   Wiggin,   67   N.   H.  89; 

band)    is  to  share  in  the  bounty.)  29    Atl.    671. 

96Esty   V.    Clark,    101    Mass.    36;  ^^  In  re  Jodrell    (C.  C.  A.),  L.  E. 

Huling  V.  Fenner,  9  R.  I.  410.  44,    Ch.     D.     590;     Seale-Hayne    v. 

97  Ross  V.  Ross,  25  Can.  S.  C.  R.  Jodrell,   65   L.   J.   57— H.   L.    (E.)  ; 

307;    Drew    v.    Wakefield,    54    Me.  (1891),  A.  C.  304. 


LAW    OF    WILLS.  617 

§530.     Brothers  and  sisters. 

The  word  "brothers"  in  a  devise  to  the  brothers  of  testa- 
tor has  been  held  under  special  circumstances  to  include  a 
brother  who  was  dead  when  the  will  was  executed.  In  this 
case  there  was  but  one  brother  living  when  the  will  was  exe- 
cuted, in  which  there  was  a  devise  to  testator's  "brothers,"  and 
the  children  of  deceased  brothers  were  otherwise  unprovided 
for.^^^  A  direction  for  the  distribution  of  a  fund  among 
the  "brothers  and  sisters"  of  testator  and  their  lineal  heirs 
includes  brothers  and  sisters  of  the  half  blood  as  well  as  those 
of  the  whole  blood.^"^ 


§531.     Nephews  and  nieces. 

The  words  "nephews"  and  "nieces"  do  not  ordinarily  in- 
clude grandnephews  and  grandnieces.  This  is  especially  true 
where  these  grandnephews  and  grandnieces  have  been  already 
referred  to  in  the  will  as  the  children  of  a  deceased  niece.^"- 
The  context  and  extrinsic  evidence,  however,  may  show  that 
"niece"  was  used  for  "grandniece."  Thus  a  devise  to  the  three 
"nieces"  of  testator  was  held  to  menn  a  devise  to  his  grand- 
nieces  where  he  had  no  nieces  at  the  time  of  the  making  of  the 
will  but  had  grandnieces,  with  which  facts  he  was  acquaint- 
g(j.io3  j^Qj,  (jQpg  ||-^g  tei-j^i  "nephews"  ordinarily  include  nephews 
of  the  wife  of  the  party  designated.^ "^"^ 

§532.     Cousins. 

When  used  in  a  will  to  denote  a  beneficiary,  the  word 
"cousin"  ordinarily  means  a  first  cousin;  that  is,  a  son  or 
daughter  of  an  uncle  or  an  aunt.^°^     And  a  legacy  to  each  of 

100  Fuller    v.    Martin    —    Ky.  — ,           lo^  Root's  Estate,  187  Pa.  St.  118. 

(1895)  :  29  S.  W.  .315.  ins  Stevenson  v.  Abington,  8  Jur. 

loiYetter's    Estate,    160    Pa.  St.        (N.  S.)   811;  6  L.  J.  345:  10  W.  R. 

506.  591 ;  Stoddart  v.  Nelson,  6  De  G.  M. 

102/^   re    Woodward,    117    N.  Y.       &   G.   68 ;    White   v.   Mass.   Inst,   of 

522;  7  L.  R.  A.  367.  Tech.,  171  Mass.  84,  distinguishing 

103  Jn    re     Davis     —     R.     I.  — ,      Nutter  v.  Vickery,  64  Me.  490. 
(1896) ;    35   A.   1046. 


618  LAW    OF    WILLS. 

the  "cousins"  of  testatrix  passes  to  the  first  cousins  only,  and 
not  to  lirst  cousins  once  removed. ^^^  But  where  testator  in 
his  will  specifically  refers  to  his  first  cousins  once  removed 
as  his  '^cousins,"  they  will  be  included  under  a  subsequent 
legacy  to  his  cousins.^ ^'^  ' 

The  term  "second  cousin"  is  one  whose  meaning  is  open  to 
much  popular  dispute  though  it  seems  well  settled  at  law.  By 
"second  cousin"  in  a  will  is  meant  a  child  of  a  first  cousin  of  a 
parent  of  the  person  whose  relationship  to  such  child  is  in  ques- 
tion.^ ^^  It  does  not  include  the  child  of  testator's  first  cousin, 
who  is  technically  the  first  cousin  once  removed.^  *^^  But  the  con- 
text and  the  surrounding  circumstances  may  show  that  by  a  de- 
vise to  a  "second  cousin"  is  meant  a  devise  to  a  first  cousin  once 
removed.  Thus  where  testator  had  no  second  cousins  but  had 
first  cousins  once  removed,  it  was  held  that  a  devise  to  his 
"second  cousins"  would  enure  to  the  benefit  of  his  first  cousins 
once  removed.^  ^^ 

The  term  "cousin,"  like  other  terms  indicating  relationship, 
ordinarily  imports  legitimacy,  but  this  rule  yields  to  testa- 
tor's clear  intention,  as  where  he  specifically  describes  cer- 
tain illegitimate  relations  as  his  "cousins."  ^^^ 


106  Sanderson  v.  Bayley,  4  Myl  &  doubt  about  its  meaning  suggested 
C.  56 ;  White  v.  Mass.  Inst,  of  Tech.,  by  anybody  that  I  am  aware  of." 
171  Mass.  84;  Rowland  v.  Slade,  Popular  American  usage  is  by  no 
155  Mass.  415  (to  "all  my  first  means  as  accurate,  but  except  where 
cousins"  does  not  include  first  cous-  altered  by  the  context  the  legal 
ins  once  removed,  citing  Merriam  meaning  of  the  word  seems  well  set- 
V.  Simonds,  121  Mass.  198)  ;  Web-  tied,  as  being  the  same  meaning 
ster's  Estate,  23  Ch.  D.  737;  In  re  as  that  given  by  the  English  courts. 
Chinery,  39  Ch.  D.  614;  Groves  In  popular  language,  "second  cous- 
V  Musther,  43  Ch.  D.  569;  In  re  in"  is  used  of  the  child  of  a  first 
Hotchkiss,  L.  R.  8  Eq.  643 ;  Haberg-  cousin  of  the  person  whose  rela- 
ham  V.  Ridehalgh,  L.  R.  9  Eq.  395.  tionship  to  such  person  is  in  ques- 

107  Wilkes    V.    Bannister,    30    Ch.  tion. 

Div.  512.  109  In  re  Parker,  15  Ch.  Div.  528. 

108  In  re  Parker,  15  Ch.  Div.  528.  no  In  re  Bonner,  19  Ch.  Div. 
In   this   case   the   court   said:    "The  201. 

relationship    is    a     perfectly     well-  m  7u   re  Jodrell    (C.   A.),   L.   R. 

known  and  perfectly  well-settled  re-  44,  Ch.  D.  590. 
lationship.     There   never     was     any 


LAW    OF    WILLS.  619 

§533.     Representatives. 

While  tlie  word  "representatives"  is  a  word  which  "may 
mean  almost  anything,  especially  in  wills,"  ^^^  it  has  a  pri- 
mary meaning  which  is  adhered  to  in  the  absence  of  anything 
to  suggest  a  different  meaning.  This  primary  meaning  is  that 
of  "legal  personal  representatives;"  that  is,  of  executors  and 
administrators.^  ^  ^ 

But  this  primary  meaning  is  not  a  firm  one.  The  context 
often  shows  that  the  word  "representative"  does  not  mean  the 
executor  or  administrator,  but  those  persons  who  would  take, 
if  the  person  to  whose  "representatives"  the  devise  is  made  had 
died  intestate.^  ^*  Thus  a  devise  to  testator's  grandchildren  and 
"the  representatives  of  any  deceased  grandchild"  is  a  devise  to 
those  who  would  take  on  the  death  of  such  deceased  grandchild, 
intestate,  under  the  statute  of  descent  and  distribution.^  ^^ 

The  context  may  limit  the  meaning  of  "legal  representa- 
tives" even  more.  Thus,  where  testator  devised  to  his  sisters, 
and  if  either  of  them  died  "without  legal  representatives,"  then 
to  the  survivor's,  it  was  held  that  "legal  representatives"  meant 
lineal  descendants.^  ^^ 

§534.     Servants. 

A  devise  to  "such  persons  as  shall  be  in  my  employ  at  the 
time  of  my  death"  does  not  include  persons  who  were  hired 
a  day  or  so  at  a  time  to  assist  the  regular  servants  ;^^^  nor 
does  a  devise  "to  my  other  employees  and  laborers"  include 
employees  in  a  public  park  under  testator  as  a  park  commis- 

112  Walter  v.  Hensel,  42  Minn.  liams  v.  Knight,  18  R.  I.  333;  In  re 
204.  It  has  "no  precise  determinate  Bates,  159  Mass.  252  ;  34  N.  E.  266 ; 
meaning."  Staples  v.  Lewis,  71  Halsey  v.  Paterson,  37  N.  J.  Eq. 
Conn.   288.  445. 

113  Zn  re  Ware,  L.  R.  45  Ch.  D.  ns /«  re  Bates,  159  Mass.  252; 
209.  34  N.  E.  266. 

114  Bains  v.  Ottey,  1  M  &  K.  ne  Staples  v.  Lewiis,  71  Conn. 
465:   Cotton  v.  Cotton,  2  Beav.  67;  288. 

Long  V.  Black-all,  3  Ves.  486;   Sta-  ht  Metcalfe    v.    Sweeney,     17    R. 

pies  V.   Lewis,   71   Conn.   288;    Wil-       I.   213. 


620  LAW     OF     WILLS. 

siouer,  where  he  had  employees  in  a  private  garden,  and  the 
clause  of  his  will  immediately  preceding  the  clause  in  dispute 
had  given  legacies  to  certain  of  these  private  laborers.^  ^^  But 
a  devise  to  the  servants  who  have  been  in  the  employment  of 
testator  for  ten  years  in  a  certain  place  includes  a  servant 
who  was  in  the  employment  of  testator  for  the  required  time 
at  the  place  specified,  even  if  he  was  not  in  testator's  employ- 
ment at  testator's  death.^^^ 

§535.     Legatees, 

A  ''deceased  legatee"  in  a  gift  to  a  certain  class,  "the  issue 
of  any  deceased  legatee  to  take  its  parent's  legacy,"  means  a 
person  included  within  such  class,  who  would  have  been  a  bene- 
ficiary under  the  will  if  he  had  survived. ^^'^  In  a  devise  to  the 
legatees,  share  and  share  alike,  the  executor  to  whom  certain 
property  is  bequeathed  in  trust  is  to  be  included  among  the 
"legatees,"  taking  his  share  on  the  same  trusts  as  the  preced- 
ing bequest.^ ^^  So  a  further  l:;equest  to  be  divided  among  the 
"legatees"  includes  a  corporation  to  which  a  bequest  has  been 
made.-'^^ 

A  gift  of  small  mementos  by  will  does  not  make  the  re- 
cipient a  legatee,^ ^^  yet  it  has  been  held  that  a  gift  of  a  pair  of 
rifles  makes  the  recipient  a  legatee.-'-^ 

§536.     Survivors. 

The  word  "survivors,"  when  used  of  a  class,  is  limited  to 
the  individuals  of  such  a  class,  and  does  not  include  their 
children.  Thus  a  devise  to  testator's  grandchildren,  subject 
to  be  defeated  on  their  death  without  issue,  in  which  event 
such  share  is  to  go  to  the  survivors,  is  not  a  devise  to  any  of 
the  children  of  these  grandchildren.^ ^^ 

118  Shaw's    Estate,    51    Mo.    App.  122  Gray's     Estate,     147     Pa.     St. 

112.  67. 

119 /n  re  Sharland,   (1896),  1  Ch.  123  White  v.  Massachusetts  Insti- 

517.  tute  of  Technology,  171  Mass.  84. 

120  Hills  V.  Barnard,  152  Mass.  124  Neville  v.  Dulaney,  89  Va.  842. 
67;  9  L.  K.  A.  211.  125  Coleman  Bush  Investment  Co. 

121  Logan's  Estate,  1.31  N.  Y.  456.  v.  Figg  (Ky.),  (1894),  25  S.  W.  888. 


621 

LAW     OF     WILLb. 


§537.     Miscellaneous.— Occupations. 

a' devise  of  a  law  Ul-vary  to  testator's  "nephews  who  may 
read  Uw"  includes  those  who  have  begun  the  study  o  la. 
Tth  the  intention  of  being  admitted  to  the  bar  and  prac Uctng 
Hw  nd  also  those  who  have  already  been  adnutted,  but  does 
to  'ilude  a  nephew  who  had  registered  as  a  law  student,, 
".t  had  abandon«l  the  study,  and  did  not  intend  to  apply  fov 

^' w'::Uwile  to'lTof  certain  persons  as  should  be  ';prepar- 
in:for  the  ministry"  includes  such  as  have  begun  a  strict  theo- 
o:ica  course  of  stndv,  but  it  docs  not  include  one  who  .s  study- 
bleneral  collegiate  work  as  a  preparation  for  tins  theological 
courio  study.-'  So  a  devise  to  be  expended  in  educating 
oeln  designated  persons  at  a  college  to  be  erected  on  a 
specified  piece  of  ground  dedicated  by  testator  fails  en  ire 
and  passes  under  an  alternative  clause  to  other  named  col- 
iTi' Xre  the  college  was  not  erected  because  testator  did 

not  dedicate  the  land.""  .       „:„„„^"  wn^s 

A  devise  to  testator's  "spinster  or  unmarried  nieces     wa 
Held  to  include  such  as  were  widows  at  testators  death  in 
adition  to  such  as  had  never  been  married.  - 

§538.     Misdescription  of  beneficiary  .-Natural  persons. 

'    The   indulgence   shown  to   the   intention   of   testator  man- 
ifests itself  in  a  striking  manner  in  cases  of  misdescription.     1 
a  fundamental  rule  in  these  cases  that  a  mere  matter  of  m  s 
description  does  not  vitiate-that  is,  if  no  person  exists  w^^ 
corresponds  in  all  particulars  with  the  description  given  in  tie 
will    but  if  a  person  does  erist  who  corresponds  to  the  de 
cri;tion  in  eno'ngh  particulars  to  make  it  ~%  certain 
that  he  was  intended  and  no  other  person  exists  who  corre 
spends  sufficiently  to  the  description  to  raise  a  doubt  as  to  the 

,=,  Benin's   E.tate,    16!)   Pa.    St.      College    v.    S„oen»kev    College,    9-2 

Va.  320. 

^^^-  ^  u     ^       ri    ATn  129  Convav's   Estate,    181    Pa.    St. 

127  Clayton    v.    Robards,    54    Mo.  ^'J'      . 

App.  539.  ^^^• 

128  Trustees  of  Emory  and  Henry 


622  LAW    OF    WILLS. 

identity  of  the  beneficiary,  the  beneficiary  thus  indicated  will 
be  held  to  be  the  beneficiary  intended  under  the  will,  even 
though  he  does  not  in  all  respects  correspond  to  the  descrip- 
tion in  the  will.^^^  There  is,  however,  no  need  of  applying 
this  doctrine  where  there  is  no  real  misdescription  or  ambiguity 
in  view  of  the  established  rules  of  law.  Thus  a  legacy  was  given 
"unto  my  nephew,  William  Hoot."  There  were  two  persons  of 
that  name,  one  a  relative  of  testator's  by  blood,  the  other  a 
nephew  of  testator's  wife.  Since  the  primary  meaning  of 
"nephew"  is  that  of  a  blood  relative,  it  was  held  that  there  was 
no  ambiguity  of  any  sort  in  such  devise.-^ ^^ 

A  bequest  was  made  to  one  who  was  designated  as  testator's 
"sister,  Anastasia  Cummings."  Testator  had  only  two  sisters, 
Maria  Cummings  and  Katherine  Kelly.  A  similar  bequest 
was  made  to  Katherine  Kelly.  It  was  held  that,  in  spite  of  the 
misnomer,  Maria  Cummings  was  entitled  to  the  bequest  to 
Anastasia  Cummings.^ ^^ 

So  where  testator  made  a  bequest  to  the  children  of  "Dr. 
James  B.  S.,"  testator  having  a  brother  named  Joseph  B. 
S.,  who  was  a  doctor,  and  a  nephew  named  James  B.  S.,  who 
was  not,  it  was  held  that  the  name  of  devisee,  referring  to  a 
person  in  existence,  was  clear,  notwithstanding  a  possible 
misdescription.^  ^^ 

§539.     Misdescription   of  beneficiary. — Corporations. 

Misnomer  is  especially  frequent  in  devises  to  charitable 
corporations.  The  real  names  of  such  corporations  are  often 
never  used  and  never  known  by  people  generally;  and  many 
testators  do  not  feel  the  need,  in  preparing  a  Avill,  of  getting 
the  real  name  of  the  proposed  beneficiary.      They  prefer  to 

130 /n    re    Whitty,    30    Ont.    Rep.  i^i  Root's  Estate,  187  Pa.  St.  118. 

300:   Doughten  v.  Vandever,  5  Del.  i32 /^    re    Whitty,    30    Ont.    Rep. 

Ch.   51 ;    Woman's,   etc..   Missionary  300. 

Society  v.  Mead,  131  111.  338:   Reil-  i33  Atterbury  v.  Strafford  (N.  J.) 

ly  V.   Union  Protest.  Infirmarv.   87  ( 1899  ) ,  44  Atl.  160.     An  additional 

Md.   664:    Smith  v.  Kimball.  62  N.  fact   in   this    case   was   that   James 

H.   606:    Elwell  v.  General   Univer-  B.   S.  was  once  a   clerk   in   a  drug- 

salist  Convention,  76  Tex.  514.  store  and  was  nicknamed  "Doc." 


LAW    OF    WILLS.  ^^^ 

guess  at  the  name.     Hence  the  number  of  adjudicated  cases 
upon  this  point. 

It  is  an  elementary  principle  that  where  a  corporation  is 
indicated  in  a  will  by  an  erroneous  name,  such  a  mistake  will 
not  avoid  the  gift  if  it  is  possible  by  means  of  the  name  used, 
or  by  extrinsic  evidence,  to  identify  the  corporation  intended 
as  beneficiary  with  sufficient  certainty.^ ^^ 

:N'o  difficulty  is  presented  where  a  bequest  is  made  to  the 
board  of  trustees  of  a  specified  corporation,  and  their  suc- 
cessors and  assigns,  and  the  name  has  been  changed  before  the 
execution  of  the  will;  while  a  technical  misnomer,  the  inten- 
tion of  testator  in  such  a  case  is  too  clear  for  mistake.^^^^ 

A  more  difficult  question  is  presented  where  the  name  given^ 
in  the  will  is  not  the  name  of  any  existing  corporation.  If 
such  corporation  can  be  identified  by  the  location  of  its  build- 
ins-s  the  misnomer  will  not  invalidate  the  gift.  Thus  a  be- 
quest to  the  "Presbyterian  Infirmary"  situated  on  a  certam 
street  was  held  to  mean  the  "Union  Protestant  Infirmary" 
situated  on  the  named  street.  But  there  was  no  other  organ- 
ization which  could  have  taken  under  this  bequest.^^^^ 

Where  the  name  given  to  the  corporation  is  not  that  of  any  ex- 
isting organization,  but  closely  resembles  the  name  of  a  cor- 
poration engaged  in  similar  work,  the  gift  will  be  held  a 
gift  to  such  corporation  if  the  evidence  indicates  that  this 
corporation  was  intended  by  testator.^  ^^ 

i34Reilly  V.  Union  Protestant  In-  mean  the  "Woman's  Missionary  So- 

flrmary     87    Md.    664;      Moore     v.  cietv      of      America      for      Heathen 

Moore   '50   N.   J.   Eq.   554;    25   Atl.  Lands";  a  gift  to  the  "Hahnemann 

403;  Van  Nostrand  v.  Board  of  Do-  Hospital    at    Chicago"   was   held    to 

mestie  Missions   (N.  J.)    (1899),  44  mean  the  "Board  of  Trustees  of  the 

Atl     47'>-     Elwell    v.    Universalist  Hahnemann    Medical     College    ;      a 

General  Convention.  76  Tex.  514.  gift  to  the  "Fund  for  Disabled  Min- 

133  Elwell  V.  Universalist  General  isters  of  the   Presbyterian   Church 

Convention,   76    Tex.    514.  was  held  to  mean  the  "Presbytenan 

issReilly  V.  Union  Protestant  In-  Board   of  Relief   for   Disabled  Min- 

firmarv,  87  Md.  664.  inters,"   and   a   legacy   to   the     Chi- 

137  Woman's,  etc..  Missionary  So-  cago   Training   School   for   Nurses. 

ciety   v    Mead,    131    111.    338.  was     held    to    mean    the    "Illinois 

(  \   crift  to  the  "Woman's  Union  Training  School  for  Nurses."  which 

Mission"    (of  Chicago)   was  held  to  was  located  at  Chicago.     The  soci- 


624  LAW     Oh'     WILLS. 

Where  two  organizations  each  claim  the  same  name,  a  some- 
what difficult  question  is  presented  by  a  devise  to  a  corporation 
of  this  name  without  indicating  which  corporation  was  in- 
tended. In  a  recent  Pennsylvania  case,  where  a  bequest  was 
made  in  this  manner,  the  old  organization  was  empowered  to 
hold  property.  It  was  affiliated  with  a  general  church,  but 
nothing  in  the  constitution  of  the  general  church,  or  the  agree- 
ment of  affiliation,  operated  to  transfer  the  property  of  the  in- 
dividual churches  to  the  general  organization.  Subsequently 
the  old  society,  by  a  majority  vote,  severed  its  connection  with 
the  general  church,  and  thereupon  the  minority  seceded  from 
the  majority,  and,  under  direction  of  the  general  church, 
formed  a  new  society.  In  the  absence  of  anything  to  indicate 
a  contrary  intention  it  was  held  that  the  legacy  was  meant  for 
the  original  local  organization.^ ^^ 

Where  a  devise  is  unmistakably  meant  to  go  to  certain 
named  natural  persons  as  trustees  for  a  charitable  purpose 
(establishing  a  home  for  destitute  children)  it  could  not  be 
construed  as  intended  for  a  corporation  of  which  these  natural 
persons  were  the  incorporators,  formed  for  the  same  pur- 
pose.-^ ^^ 

eties    which    received    the    bequests  (A  legacy  to  the  "Home  Mission 

were  the  only  ones  in  any  way  cor-  of    the    Presbyterian    Church"    of   a 

responamg    to    the    names  used    in  named   city   was   held   to   mean   the 

the  will,  and  testatrix  was  person-  "Trustees    of    the     Presbytery"    of 

ally  interested  in  each  of  them.)  this    city.      In    this    case    the    com- 

Chambers      v.      Higgins       (Ky. ),  mittee  of  the  trustees  of  the  Pres- 

(1899),  49  S.  W.  4.36.  bytery    which    had    charge    of    the 

(A  devise  to  the  "Christian  Mis-  home  missionary  work  was  the  most 

sionary    Society    or    Convention    of  prominent    part    of    tlie    organiza- 

the  Christian  Church  of  Kentucky,"  tion.) 

was   held   to   mean  an   incorporated  iss  Aitkin's   Estate,     158    Pa     St. 

association  kno-\vn  as  the  "Kentucky  541. 
Christian    Missionary    Convention."  iso  Woodruff  v.  Marsh,   03   Conn. 

lleilly    V.    Union    Protestant    In-  125. 
firmarv,  87  Md.  664. 


LAW     OF    n'lLLS. 


625 


CHAPTER   XXlll. 

GIFTS  TO  A  CLASS. 

§540.     Definition. 

"In  legal  contemplation  a  gift  to  a  class  is  an  aggregate  sum  to 
a  body  of  persons,  uncertain  in  number  at  the  time  of  the  gift, 
to  be  ascertained  at  a  future  time,  who  are  to  take  in  equal 
or  in  some  other  definite  proportions,  the  share  of  each  being 
dependent  for  its  amount  upon  the  ultimate  number."  ^ 

This  definition  is  the  favorite  one  and  has  the  sanction  of 
authority.  It  is  defective,  however,  in  restricting  the  time  of 
ascertainment  of  the  numbers  of  the  class  to  a  future  time. 
It  is  possible  for  testator  to  devise  to  a  class  as  fixed  at  the  time 
that  he  makes  the  will.^ 

A  similar  definiton  was  given  in  a  recent  Tennessee  case. 
The  court  said  that  the  beneficiaries  take  as  a  class  under  the 
will,  the  bequest  being  to  a  class  of  persons  subject  to  fluc- 
tuation by  an  increase  or  diminution  of  its  number  in  con- 
sequence of  future  births  or  deaths,  and  the  time  of  payment 
or  distribution  of  such  fund  being  fixed  at  a  subsequent  period, 
on  the  happening  of  a  designated  event,  and  the  bequest  being 

1  In  re  Bro\vn,  154  N.  Y.  313,  cit-  67;  Jarman  on  Wills,  Sth  Ed.  *269. 
ing    In    re    Kimberly,     150    N.    Y.  2   See  Sec.  546. 

00;    Dulanv    v.    Middleton,    72    Md. 


6.26  — W     OF     WILLS. 

of  an  aggregate  fund  given  to  the  children  as  a  unit  and  pass- 
ing a  joint  interest.^ 

§541.     Examples  of  gifts  to  a  class. 

Where  a  devise  does  not  indicate  the  individual  members  of 
the  class  by  name  or  by  description,  but  merely  designates  the 
class,  such  as  '^children,"  ^  or  ''nephews,"  ^  the  courts  treat 
such  devise  as  a  gift  to  a  class  and  apply  the  rules  peculiar 
to  such  gifts. 

§542.     Examples  of  gifts  held  not  to  a  class. 

When  a  testator  devises  property  to  persons  who  are  desig- 
nated individually,  as  by  name  or  description,  or  where  he  de- 
vises property  in  severalty  to  a  number  of  persons,  the  courts  do 
not  treat  such  devises  as  devises  to  a  class,  since  the  share  of  each 
does  not  depend  upon  the  ultimate  number  of  those  who  com- 
pose the  class.^ 

A  gift  to  "each"  of  testator's  two  children  was  held  to  be  a 
gift  to  them  individually  and   not   as   a   class.'^ 

§543.     Effect  of  naming  members  of  a  class. 

Where  there  is  a  gift  to  a  number  of  persons  who  are  in- 
dicated by  name,  and  also  further  described  by  reference  to 
the  class  to  which  they  belong,  the  gift  is  held  yrima  facie  to 
be  a  distributive  gift  and  not  a  gift  to  a  class.^ 

3  Franklin  v.  Franklin,  91  Tenn.  251;  Horton  v.  Earle,  162  Mass. 
119,  citing  Frierson  v.  Van  Buren,  448:  Markle's  Estate,  187  Pa.  St. 
7  Yer.  G06;  Satterrield  v.  Mayes,  11  639;  Hick's  Estate,  134  Pa.  St. 
Hum.    58;    Womack    v.    Smith,    11  507. 

Hum.  478 ;   Bridgewater  v.  Gordon,  7  Rogers    v.    Strobach,    15    Wash. 

2    Sneed.    5.  472. 

4  Dryer  V.  Crawford,  90  Ala.  131 ;  §  Bill  v.  Payne,  62  Conn.  140; 
Haas  V.  Atkinson,  9  Mackey  (D.  Eockwell  v.  Bradshaw,  67  Conn.  8 
C),  537.  Frost    v.    Courtis,    167    Mass.    251; 

5  Pendleton  v.  Kinney,  65  Conn.  Dildine  v.  Dildine,  32  N.  J.  Eq.  78 ; 
222.  Moffett  v.  Elmendorf,  152  N.  Y.  475. 

6  Sturgis  V.  Work,  122  Ind.  134;  (In  such  eases  if  one  of  the  bene- 
Townsend  v.  Townsend,  156  Mass.  ficiaries  dies  before  the  testator, 
454:    Frost    v.    Courtis,    167    Mass. 


LAW    OF    WILLS. 


627 


The  context,  however,  may  show  that  the  names  of  the  bene- 
ficiaries were  added  to  the  description  of  them  as  members 
of  a  class  for  the  purpose  of  greater  certainty,  and  that  the  par- 
amount intention  of  testator  was  to  make  the  gift  to  a  class. 
In  such  case  the  gift  will  be  treated  as  one  to  a  class  even  if 
their  names  are  given  in  the  will.^  So  a  devise  to  "the  heirs" 
of  A,  "namely,  B,  C  and  D,"  was  held  to  be  a  gift  to  a  class.^° 

§544.     Exclusion  from  a  class. 

A  testator  has  full  power  to  exclude  any  designated  person 
or  persons  from  a  general  class  of  beneficiaries  under  his  will 
if  he  makes  clear  his  intention  so  to  do.^^  Thus  a  devise  to 
testator's  "children"  does  not  include  children  to  whom  testa- 
tor, as  in  the  preceding  clause,  bequeathed  property  "to  be  in 
full  of  their  portion  of  my  estate,  both  real  and  personal. "^^ 
And  where  the  testator  provides  in  his  will  that  the  rest  of 
his    estate    should    be    distributed    amonff   his    "children    and 


there  is,  therefore,  no  right  of  sur- 
vivorship to  the  other  named  bene- 
ficiaries.) 

Saxton  V,  Webber,  83  Wis.  617; 
20  L.  R.  A.  509 

Thus  a  gift  "to  my  brothers 
Ealph  and  Abram"  is  not  a  gift  to 
the  brothers  as  a  class,  although 
they  were  in  fact  the  only  brothers 
of  testator.  Dildine  v.  Dildine,  32 
N.  J.  Eq.  78. 

oBolles  V.  Smith,  39  Conn.  217; 
Warner's  Appeal,  39  Conn.  253  "to 
the  Sons  of  my  two  sisters,  deceased, 
II  and  C,"  where  the  sisters  had 
b:'en  the  wives  of  the  same  husband, 
successively,  and  H  was  the  son  of 
one  sister  and  C  of  the  other.  Tal- 
cott  v.  Talcott,  39  Conn.  186  (to  A, 
C  and  D  and  all  the  children  of 
A,  where  C  and  D  were  children  of 
A).  Springer  v.  Congelton,  30  Ga. 
976  (to  all  the  children  of  X,  name- 
ly, A,  B  and  C).  Jackson  v.  Rob- 
erts,  14  Gray,  546    (to  A,  B,  C,  D 


and  E,  the  children  of  X).  Sted- 
man  v.  Priest,  103  Mass.  293  (to 
A,  B  and  C,  grandchildren  of  X). 
Swallow  V.  Swallow,  166  Mass.  241 ; 
Rixey  v.  Stuckey,  129  Mo.  377  (to 
the  children  of  X,  namely,  A,  B  and 
C).  Church  V.  Church,  15  R.  I. 
138. 

10  Swallow  V.  Swallow,  166  Mass. 
241.  (Hence  where  only  one  of  the 
three  heirs  survived  at  testator's 
death  he  took  the  entire  gift  to 
the  three.) 

11  Griffin  v.  Ulen,  139  Ind.  565; 
Dickison  v.  Dickison,  39  111.  Appeal, 
503;  Sullivan  v.  Straus,  161  Pa. 
State,  145 ;  Wildberger  v.  Cheek, 
94  Va.  517  distinguishing  Patch  v. 
White,   117   U.   S.  210. 

12  Dickison  v.  Dickison,  138  111. 
541,  affirming  39  111.  Appeal,  503; 
so  "heirs,"  Ober  v.  Hickox,  10  Ohio 
C.  D.   128. 

Contra,  Fahnestoek's  Estate,  147 
Pa.   St.   .-527. 


628  LAW    OF     WILLS. 

grandchildren/'  it  does  not  include  a  son  whom  he  had  pre- 
viously expressly  disinherited  by  the  will  /^  nor  a  son  to  whom 
he  had  expressly  given  half  his  estate  where  he  devises  the 
rest  to  his  ''heirs."  ^'^ 

But  the  intention  of  testator  to  exclude  those  who  would 
naturally  be  included  within  the  class  designated  must  be 
clear.^^  Thus  where  testator  had  given  reason  for  excluding 
his  brother-in-law  and  children  on  account  of  their  wealth, 
such  children,  nevertheless,  are  included  in  a  bequest  to  the 
surviving  heirs  of  the  father  and  mother  of  testator/^  and 
so  a  devise  to  the  "other  legal  heirs  and  representatives  not 
hereinbefore  named"  of  testator,  is  not  held  to  exclude  a 
brother  who  had  been  named  previously  in  the  will,  but  only 
in  a  phrase  describing  beneficiaries  named  as  the  children  of 
such  brother,  naming  liim.^'^ 

§545.     Time  of  determining  the  members  of  a  class. — General 
rule  where  possession  is  immediate. 

Since  a  will  speaks  from  the  day  of  testator's  death,  that  is, 
since  it  must  prima  facie  be  considered  with  reference  to  the 
state  of  affairs  as  they  exist  at  the  date  of  his  death,  the  num- 
bers of  the  class  of  beneficiaries,  where  a  devise  is  made  to 
a  class,  is  prima  facie,  in  the  absence  of  anything  showing 
a  contrary  intention,  to  be  determined  upon  the  death  of  the 
testator.^  ^      Thus,  ordinarily,   a  devise  over  after  life  estate 

13  Sullivan  v.  Straus,  161  Pa.  163  Mass.  130;  Shaw  v.  Eckley,  169 
State,  145.  Mass.     119;     Marsh    v.    Hoyt,     161 

14  Griffin  v.  Ulmer,   135  Ind.  565.  Mass.  459;   Whall  v.  Converse,   146 

15  Fahenstock's  Estate,  147  Pa.  Mass.  345;  Hall  v.  Smith,  61  N. 
State  327.  H.   144;   Starling  v.  Price,   16  0.  S. 

16  Deiter  v.  Shatter,  70  Vt.  150.  29;  In  re  Smith,  131  N.  Y.  239:  So- 

17  Faulstich's  Estate,  154  Pa.  St.  teldo  v.  Clement,  29  Weekly  Law 
188.  Bull.    384;    Landwehr's   Estate,    147 

18  Ruggles  V.  Randall,  70  Conn.  Pa.  State,  121  ;  Striewig's  Estate, 
44;  Hoadly  V.  Wood,  71  Conn.  452:  169  Pa.  St.  61:  Chase  v.  Peck- 
Kellett  V.  Shepard,  139  111.  433:  ham,  17  R.  I.  385;  Sherman  v. 
Hill  V.  Harding,  Ky.  (1892),  17  S.  Baker,  20  R.  I.  446;  40  L.  R.  A. 
W.  437;  Sevier  v.  Douglas,  44  La.  717;  Tucker's  Will,  63  Vt.  104: 
Ann.  605;  Coggins  v.  Flythe,  113  Buzby  v.  Roberts,  53  N.  J.  Eq.  566. 
N.    C.    102;    Clark    v.    Benton,    124  1895 ;  32  Atl.  9. 

N.    r.    200;    Richardson    v.    Willis, 


"LAW     OF     WILLS. 


629 


to  the  "heirs"  of  a  designated  person,  means  to  the  heirs  of 
such  person  as  determined  at  the  death  of  testator.^ '^ 

'^Speaking-  generally,  when  a  gift  is  made  to  a  class  of  per- 
sons to  take  effect  immediately  in  possession,  those  who  con- 
stitute the  class  at  the  death  of  testator,  when  the  will  becomes 
operative,  take  unless  a  different  intent  appears  from  the  will 
or  from  such  intrinsic  circumstances  as  may  properly  be 
taken  into  account."-'^  So  a  gift  of  "as  many  thousand  dollars 
as  I  have  grandchildren  at  my  decease"  specifically  fixes  tes- 
tator's death  as  the  time  for  determining  the  class.^^  Since 
the  class  is  to  be  determined  at  the  death  of  the  testator,  it 
follows  that  those  who  have  died  before  testator  can  not  be 
counted  in  the  class,  so  that  the  devise  will  inure  to  their  heirs 
or  representatives.^^  And  members  of  the  class  born  after 
t<^sta tor's  death  can  not  be  counted  in  the  class  so  as  to  af- 
fect the  share  of  those  living  at  testator's  death,  or  so  as 
to  become  beneficiaries  themselves.^^  But,  in  accordance  with 
the  usual  rule  of  construction,  all  unborn  members  of  the 
class  may  be  counted  in  such  class  where  potentially  in  exist- 
ence at  the  time  of  testator's  death,  en  ventre  sa  mere.^'^  Thus 
a  devise  to  testator's  "children"  by  his  wife  inures  to  the  bene- 
fit of  a  posthumous  child.^^ 

Where  no  class  of  beneficiaries  under  the  will  is  entirely  un- 
represented at  the  death  of  testator,  those  born  after  the  death 
of  testator  and  not  en  ventre  sa  mere  at  his  death,  can  not 


take, 


26 


19  Johnson  v.  Webber,  G5  Conn.  Chase  v.  Peckham,  17  R.  I.  385; 
501;  Rnggles  v.  Randall,  70  Conn.  Buzby  v.  Roberts,  53  N.  J.  Eq.  506, 
44;     Kellett    v.     Shepard,     139     111.  1895 ;  32  Atl.  9. 

433;  Tucker's  Will,  63  Vt.  104.  23  Hill  v.  Harding,  Ky.  (1892),  17 

20  Howland  v.  Slade,  155  Mass.  S.  W.  437 ;  Sevier  v.  Douglass,  44 
415,  citing  Worcester  v.  Worees-  La.  Ann.  605;  In  re  Smith,  131  N. 
ter,  101  Mass.  128:   Merriam  v.  Si-  Y.  239. 

monds,  121  Mass.  198;  Campbell  v.  24  Gulp   v.    Lee,    109    N.    C.    675; 

Rawden,  18  N.  Y.  412:   Baldwin  v.  Clark    v.    Benton,    124    N.    C.    197; 

Rogers,  3  De  G.  M.  &  G.  649.  Evans    v.    Opperman,    76    Tex.    293. 

21  Richardson  v.  Willis,  163  Mass.  25  Clark  v.  Benton,  124  N.  C. 
130;    Chapin   v.   Parker,    157   Mass.  197. 

63.  26  Parker    v.    Churchill,    104    Ga. 

'22Hoadly  V.  Wood,  71  Conn.  452:  122:    Martin    v.    Trustees.    98    Ga. 

Striewig's   Estate,    169   Pa.   St.  61;  320:  Wood  v.  McGuire,  15  Ga.  202. 


630  LAW    OF    WILLS. 

But  a  gift  to  "mj  daughter-in-law  (A)  and  her  children," 
has  been  held  to  pass  an  estate  to  all  the  children  of  A  by 
her  husband,  who  was  testator's  son,  whether  such  children 
were  born  before  or  after  the  death  of  the  testator,^'^ 

§546.     Where  time  for  determining'  members  of  class  is  fixed 
by  will. 

But  the  rule  that  the  members  of  the  class  are  to  be  deter- 
mined at  the  day  of  the  death  of  testator  is  not,  by  any  means, 
an  unyielding  rule.^^  The  will  may  specifically  fix  some  time 
other  than  that  of  the  death  of  testator  as  the  time  at  which  the 
members  of  the  class  are  to  be  determined.  It  not  infrequently 
happens  that  the  time  thus  fixed  by  will  is  the  date  of  the  ex- 
ecution of  the  will.^^  Thus  a  devise  to  .the  members  of  a  class 
living  at  the  date  of  the  execution  of  the  will  fixes  such  date 
as  the  time  for  determining  the  members.^*^  The  same  result  is 
sometimes  obtained  by  providing  that  if  any  member  of  a  class 
die  before  testator  the  share  of  such  member  shall  pass  to  his 
children.^^ 

The  time  fixed  by  will  as  the  time  at  which  the  members  of 
a  class  are  to  be  determined  may  also  be  some  time  after  the 
death  of  the  testator,  as  long  as  this  time  fixed  is  not  so  remoie 
as  to  violate  the  rule  against  the  perpetuities.^^  This  time 
may  be  either  indicated  by  the  express  language  of  the  will  or 
may  be  inferred  from  the  general  nature  of  its  provisions.  Thus 
where  a  particular  estate  is  devised  by  will  with  the  remainder 
to  the   "living  children,"^^   or  to   issue   "then   living,"  ^^   the 

27  Lynn  v.  Hall,  101  Kv.  738,  dis-  so /^  re  Wood  (1894),  3  Ch.  381. 
tinguishing  Williams  v.  Duncan,  92  si /^  re  Musther  (C.  A. ),  43  Ch. 
Ky.  125,  as  a  case  in  which  testa-  D.  569;  Palmer  v.  Dunham, 
tor's  intention  to  exclude  after-  125  N.  Y.  68 ;  Morrison's  Estate, 
born    children    was    clear.  139  Pa.  State,  306. 

28  Swenson's  Estate,  55  Minn.  30 ;  32  See  Sec.  625,  et  seq. 

56  N.  W.  1115.  33Larby    v.    Crewson,     21      Ont. 

29  In    re    Wood     (1894),     3     Ch.  93;   Blass  v.  Helms.  93  Tenn.   166; 
381:  Tn  re  Musther,  43  Ch.  D.  569;  Inge  v.  .Jones.  109  Ala.  175. 
Palmer  v.  Dunham,   125  N.  Y.  68;  34  Patchen  v.  Patchen.   121   N.  Y. 
Morrison's  Estate,  139  Pa.  St.  306;  432:    Madison   v.    Larmon,    170    111. 
Dunn  V.  Cory,  56  N.  J.  Eq.  507.  65;   Heard  v.  Eead,  169  Mass.  216; 


LAW     OF    WILLS.  631 

class  is  to  be  determined  not  as  of  the  testator's  death,  but  as 
it  existed  at  the  expiration  of  the  particular  estate.  So  where 
a  devise  is  made  to  the  "then  heirs"  of  a  person,  provided  that 
person  was  not  living  at  the  death  of  another,  the  heirs  are 
to  be  determined  as  of  the  moment  of  the  death  of  that  otlier.^^ 

Sp  in  a  devise  at  the  expiration  of  a  life  estate  which  was 
given  by  will  to  testator's  ne})hew  "at  his  death  to  his  surviving 
children,"  it  was  held  that  the  class  of  children  were  to  be 
determined  as  of  the  death  of  the  life  tenant  f^  and  so  where  a 
gift  after  the  death  of  the  particular  tenant  is  to  pass  to 
"surviving  children"  or  "survivors,"  the  class  is  to  be  deter- 
mined as  of  the  death  of  the  life  tenant.^'^  And  where  a  tes- 
tator devised  a  life  estate  to  his  wife,  with  direction  that  after 
his  death  the  property  should  be  sold  and  the  proceeds  should 
be  paid  to  his  legal  heirs  in  the  same  proportions  as  they  would 
have  inherited  the  same  if  testator  "had  died  the  survivor"  of 
his  wife,  and  had  thus  died  intestate,  it  was  held  that  the  class 
of  his  legal  heirs  should  be  determined  as  if  he  had  died  in- 
testate immediately  after  the  death  of  his  wife.^® 

The  use  of  the  word  "survivors"  does  not  always,  how- 
ever, refer  to  those  surviving  at  the  time  of  taking  possession. 
In  these  cases  as  in  many  others  "we  have  to  go  upon  slight 
differences."  ^^  Where  the  will  shoAvs  an  intention  that  the 
descendants  of  deceased  children  shall  take,  and  an  evident  in- 
tention of  equality  of  distribution  is  manifested,  the  word 
"surviving"  has  been  held  to  apply  to  the  death  of  testator.^" 

So  where  a  Avill  manifests  an  intention  to  provide  for  testa- 
tor's grandchildren  equally,   it  was  held  that  the  expression 

Wood  V.  Bullard,  151  Mass.  324;   7  450;   Simpson  v.  Cherry,  34  S.  Car. 

L.  R.  A.  304 ;  Hemenway  v.  Hemen-  68  ;  Selman  v.  Robertson,  46  S.  Car. 

way,  171  Mass.  42;  Shank  v.  Mills,  202     ("surviving    legatees"    held    to 

25   S.  Car.   358.  mean    those    surviving    at    the    de- 

35  Procter    v.    Clark,    154    Mass.  feazance  of  a  conditional  fee). 
45;   12  L.  R.  A.  721.  38  Peck  v.  Carlton,  154  Mass.  231; 

36  Cheatham  v.  Gower,  94  Va.  Smith  v.  Greene,  19  R.  I.  558;  35 
383;   26  S.  E.,  853,  citing  Slack  v.  Atl.   148. 

Bird,  23  N.  J.  Eq.  238.  39  Lee  v.  Welsh,  163  Mass.  312. 

37  Winter's  Estate,  114  Cal.  186;  4o  Grimmer  v.  Friederich,  164  111. 
Button  V.  Pugh,  45  N.  J.  Eq.  426;  245;  Lee  v.  Welsh,  103  Mass.  312 
Roundtree  v.  Roundtree,  26  S.,  Car. 


632  LAW     OF     WILLS. 

"any  child  who  shall  survive  me"  might  be  either  rejected 
or  construed  as  meaning  "any  child  who  shall  live  after  me" 
where  the  literal  interpretation  would  exclude  a  number  of 
grandchildren  born  after  the  death  of  testator  and  whom  it 
was  the  evident  intention  of  testator  to  benefit.'*^ 

The  intention  of  the  testator  to  postpone  the  time ,  for 
determining  the  members  of  a  class  of  beneficiaries  may  also 
be  inferred  from  the  will  without  any  specific  provision  to  that 
effect.  Thus  where  the  testator  devises  to  the  "brothers  and 
sisters"  of  certain  of  testator's  grandchildren,  and  it  appeared 
from  the  will  in  a  provision  providing  for  testator's  grand- 
children that  he  contemplated  that  a  grandchild  would  be  born 
to  him  in  addition  to  those  named  in  the  will,  it  was  held 
that  such  ]:)rovision  would  inure  to  the  benefit  of  grandchild- 
ren born  after  testator's  death  and  in  existence  at  the  death  of 
the  life  tenants."*^ 

§547.     Effect  of  postponement  of  time  of  distribution. — Gift  to 
"heirs." 

When  the  testator  in  his  will  makes  a  provision  for  a  de- 
vise to  a  class,  and  provides  that  the  property  shall  be  dis- 
tributed among  such  class  at  some  fixed  time  after  testator's 
death,  an  important  question  is  presented  in  determining  wheth- 
er the  class  of  beneficiaries  is  to  be  ascertained  at  testator's  death 
or  at  the  time  of  the  distribution  of  the  gift.  The  authorities 
are  not  in  absolute  harmony  on  this  subject.  The  general 
rules  are  clear  and  well  defined. 

Where  the  class  of  beneficiaries  is  described  by  the  word 
"heir,"  the  class  must  be  determined  as  of  the  death  of  the  tes- 
tator, unless  the  will  plainly  indicates  otherwise.  "The  word 
'heir,'  in  its  strict  and  technical  import,  applies  to  the  person  or 
persons  appointed  by  law  to  succeed  to  the  estate ;  hence,  where 
the  word  occurs  in  the  will  it  will  be  held  to  apply  to  those  who 
are  heirs  of  the  testator  at  his  death,  unless  the  intention  of 
the  testator  to  refer  to  those  who  shall  be  his  lueirs  at  a  period 
subsequent  to  his  death  is  plainly  manifest  in  the  will.  This  con- 
struction or  definition  is  not  changed  by  the  fact  that  a  life 

41  Bailey  v.  Brown,  19  R.  I.  fi69 ;  42  Madison    v.    Larmon,    170    111. 

36  Atl.  581.  65. 


LAW     OF    WILLS. 


633 


estate  may  precede  the  bequest  to  the  heirs  at  law,  or  by  the 
circumstances  that  the  bequest  to  the  heirs  is  contingent  on  an 
event  that  may  or  may  not  happen.'"*^ 

But  while  a  gift  to  the  heirs  or  next  of  km  of  testator  is 
ordinarily  to  be  construed  as  calling  for  a  determination  ol 
the  classes  of  testator's  death,  this  rule  is  not  an  inflexible 
one  The  context  may  show  that  the  testator  intended  even 
these  classes  to  be  determined  at  a  subsequent  time.  It  is  held 
that  where  a  devise  is  made  for  life  to  one  of  the  heirs  of  tes- 
tatx^r  and  the  remainder  over  is  to  go  to  the  "heirs'  of  testator, 
this  does  not  take  the  gift  to  the  heirs  out  of  the  general  rue, 
but  that  the  class  of  heirs  is  still  to  be  determined  as  of  the 
death  of  the  testator.^"'  . 

But  where  a  bequest  is  to  a  person  who  is  the  sole  next  ol  kin 
or  heir  of  the  testator,  with  the  provision  that  the  remainder 
shall  pass  to  the  next  of  kin  of  testator,  it  has  been  held,  where 
the  context  of  the  will  showed  clearly  that  the  testator  did  not 
intend  the  remainder  to  pass  to  the  life  tenant,  the  next  ol  km 
shall  be  determined  as  of  the  date  of  the  termination  of  the 
life  estate.'*^ 


43Kellett    V.     Shepard,     139     111. 
433.     In  support  of  the  proposition 
in  the  text,  the  following  cases  may 
also  be  cited:      Bullock  v.  Downes, 
9  H.  L.  Cas.  1 ;  Mortimore  v.  Mort- 
imore,  L.  R.  4  App.  Cas.  448  ;  Elms- 
ley  V.  Young,  2  Myl.  &  K.  780;  In 
re  Ford,  72  Law.  T.   5;   Ruggles  v. 
Kandall,    70    Conn.    44;    Morris    v. 
Belles,    65    Conn.    45;      Abbott     v. 
Bradstreet,    3   Allen    (Mass.),    587; 
Minot   V.   Tappan,    122    Mass.    536; 
Dore   V.    Torr,    128    Mass.    38;    Mi- 
not V.  Harris,  132  Mass.  528 ;  Whall 
V.   Converse,   146  Mass.   345;    Shaw 
V.    Eckley,    169    Mass.    119;    Rotch 
V.  Rotch,  173  Mass.  125;  Lawrence 
V.  McArter,  10  Ohio.  37. 

44  Minot  V.  Tappan,  122  Mass. 
536:  Stewart's  Estate,  147  Pa.  St. 
383.  In  support  of  this  proposition 
are:  Bullock  v.  Downes,  9  H.  L. 
Cas.  1 :  Mortimore  v.  Mortimore,  40 
L.  J.  Ch.  470,  27  N.  R.  575;  H.  L. 


(E.),  4  App.  Cas.  448;  Elmg|ley  v. 
Young,  2  Myl.  &  K.  780;  Cable  v. 
Cable,  16  Beav.  507  ;  Ware  v.  Row- 
land, 2  PhiU.  C.  C.  635;  Buzby's 
Appeal,  61  Pa.  St.  Ill;  Rupp  v. 
Eberly,  79  Pa.  St.  141;  Cowles  v. 
Cowles,  53  Pa.  S.  175;  Brendlin- 
ger  V.  Brendlinger,  26  Pa.  St.  131. 

45  Lay    V.    Creed,    5    Hare,    580; 
Clapton  V.  Bulmer,  5  Myl.  &  C.  108 ; 
Jones  V.   Colbeck,  8   Ves.   38;   Long 
V.   Blackall,   3   Ves.   486;    Butler  v. 
Bushnell,    3   Myl.   &   K.   232;    Bird 
V.    Luckie,    8    Hare,    301:    Wharton 
V.  Barker,  4  Kay  &  J.  483;  Bullock 
V.  Downes,  9  H.  L.  Cas.  1;   Morti- 
more  V.   Mortimore,   L.    R.    4   App. 
Cas.   448;    Welch   v.   Brimmer,    169 
Mass.  204 ;  Sears  v.  Russell,  8  Gray 
(Mass.),  86;  Hardy  v.  Gage,  66  N. 
H.    552:    Pinkham   v.    Blair,   57    N. 
H.   226;   Delany  v.  McCormack,  88 
N.    Y.    174. 


634 


LAW    OF    WILLS. 


Tims  where  the  testatrix  bequeathed  all  her  property  for 
the  support  and  maintenance  of  her  father  during  his  life- 
time, with  the  direction  that,  if  necessary,  the  whole  estate 
shonid  be  used  for  his  support,  and  that  upon  his  death  or 
remarriage  the  estate  should  pass  to  her  next  of  kin,  it  waa 
held  that  the  intention  of  testatrix  was  clear  that  this  remain- 
der should  not,  under  any  circumstances,  pass  to  her  father, 
and  that  the  next  of  kin  must  be  determined  as  of  his  death.^® 
In  the  same  will  where  part  of  the  estate  of  testatrix  was  to 
pass  to  the  next  of  kin  of  the  husband  of  testatrix,  it  was  held 
that  this  next  of  kin  must  be  determined  as  of  the  same  time  as 
to  the  next  of  kin  of  testatrix.'*'^ 


46  Fargo  V.  Miller,  150  Mass.  225 ; 
5  L.  R.  A.  690. 

47  Fargo  V.  Miller,  150  Mass. 
225. 

In  a  recent  Rhode  Island  case 
property  was  left  after  the  terms 
of  a  life  estate  to  "my  heirs  at  law 
according  to  the  Statute  of  De- 
scents." A  son  of  testator  was  at 
that  time  domiciled  in  a  foreign 
country,  and  as  an  alien  could  not 
at  that  time  take  title  to  real  es- 
tate by  devise.  Testator  died  in 
1829.  The  last  life  tenant  died  in 
1890.  In  the  meantime  statutes  al- 
lowed aliens  to  take  by  devise.  In 
deciding  whether  tiie  heir  was  to 
be  determined  as  of  the  death  of 
testator  in  1829,  or  as  of  the  death 
of  the  life  tenant  in  1890,  the 
court  in  holding  that  date  for  fix- 
ing the  heirs  was  in  1890,  sa^d: 

"While  the  general  rule  is  that  the 
heirs  of  a  testator  are  to  be  taken 
from  the  time  of  his  death,  yet  the 
rule  gives  way  to  a  contrary  in- 
tent to  be  found  in  the  will.  As- 
suming, then,  that  the  cases  re- 
ferred to  go  no  further  than  this, 
we  think  that  the  will  in  this  case 
shows  such  an  intent.  The  prop- 
ertv  given  to  Charlotte  or  Maria  is 


to  go  'on  their  decease'  in  the  sec- 
ond clause,  and  on  'both  of  their 
decease',  in  the  fifth  clause,  to  the 
heirs  at  law  of  the  testator.  In 
making  such  a  gift  his  mind  would 
naturally  look  forward  to  the  time 
when  the  estate  might  vest  in  pos- 
session, and  so  the  words  used 
comport  with  an  intent  to  point  out 
the  time  and  mode  of  ascertaining 
who  the  heirs  will  be  by  desig- 
nating a  class  to  take  as  execu- 
tory devisees.  The  agreed  facts  also 
point  to  such  an  intent.  When  the 
will  was  made,  the  son  William  was 
a  domiciled  resident  of  Cuba,  who, 
being  an  alien,  was  incapable,  as 
our  law  then  stood,  to  take  by 
descent ;  but  that  there  can  be  no 
inference  of  an  attempt  to  exclu- 
sion on  this  account,  appears  by  the 
fact  of  a  devise  of  real  estate  to  him, 
and  the  fact  that  he,  with  the  other 
children,  was  one  of  the  residuary 
legatees  in  the  will.  Of  course  the 
testator  could  not  foresee  changes 
in  our  law  in  regard  to  alienage,  but 
it  is  not  improbable  that  he  looked 
forward  to  a  return  of  his  son  or 
his  family  to  citizenship  in  this 
country  when  he  or  they  could  stand 
as   legatees   in    the    class   which   he 


LAW     OF    WILLS. 

§548.     Effect  of  postponement  of  time  of  distribution.— Gift  to 
others  than  "heirs." 

In  a  devise  to  a  class  described  in  any  other  way  than  as  al- 
ready stated,  the  effect  of  postponing  the  period  of  distribution 
to  some  time  subsequent  to  testator's  death,  is  to  cause  such  a  de- 
vise to  pass  to  all  who  are  in  existence  at  the  time  allowed 
for  the  distribution  among  such  class  who  answer  the  descrip- 
tion in  the  will.'*^ 

"Wherever  a  personal  estate  or  interest  is  carved  out  with 
a  gift  over  to  the  children  of  a  person  taking  that  interest,  or 
of^any  other  person,  the  limitations  will  embrace  not  only 
the  objects  living  at  the  death  of  testator,  but  all  who  shall 
subsequently  come  into  existence  before  the  period  of  distri- 
bution. Such  a  remainder  vests  in  the  objects  to  whom  the  dis- 
tribution applies  at  the  death  of  the  testator,  subject  to  open 
and  let  in  others  answering  the  description  as  they  are  born 

successively."  '^^ 

So  in  a  gift  to  one  for  life  of  the  interest  of  a  fund,  and  a 
direction  that  at  his  death  the  principal  "is  to  go  to  his  chil- 

designated     them.       Moreover,     the  v.  Terryn,  3  T.  R.  484)  ;  Mc.lrthur 

words  are  that  the  estate    'on  their  v.   Scott,   113   U.   S.   340;    Baker   v. 

decease  U  divided  among  my  heirs  McLeod,    79    Wis     534;    Wilson    v. 

at   law'      The    division    was   to    be  White,    109   N.   Y.    59;    Taggart   v. 

prospective,   and   we   see   no   reason  Murray,    53    K    Y.    233 ;    L  Estor- 

Ihy   the   class    should   not   also   be  neau  v.   Henqu.net,   89   Mich.   428 ; 

ta/en  to  be  so.     For  this  reason  as  Fitzhugh     v     Townsend,    59    Mk^. 

well  as  those  given  in  the  previous  427 ;    Campbell    v.    Stokes,    142    N. 

opinion,  we  think  that  these  words  Y.     23;      Evan  s    Estate,     155    Pa 

were   intended   to   fix   the   time  for  State,  ^46;  Frankhn  v   Frankhn   91 

the  vesting  of  the  estate  and  the  as-  Tenn.  119 ;  Blass  v^He  ms,  93  Tenn. 

certaining   of    the   persons    to    take  16G;    DeWolfe  v    ^^dd  eton,   18   R. 

in  the  possession.    They  .re  not  sub"  I.  810 ;  In  re  Allen,  151  N.  Y.  243, 

stantially  different  from  cases  where  affirming    81    Hun,    91;    Goebel    v. 

the    devise    is    to    those    who    shall  Wolf,  113  N.  Y.  405;   Rmgqujst  v. 

tne    aevibe                       .   .■  „  »  Youns    112  Mo.  25 ;  Sinton  v.  Boyd, 

then  answer  the  description.  loung,  ii-  mu.        ,               -r,      ,      (. 

DeWolf    V.    Middleton,    18    R.    I.  19   0.   S.   30;    Peterson  v.  Beach,   6 

gjQ  Rec.    (Ohio),  513. 

48  Doe  V.  Sheffield,  13  East,  526:  49  Evan's  Estate,  155  Pa.  St    646, 

Phini.v  V.  Foster,  90  Ala.  262;  Cav-  citing  Bower's  Estate,  11   P^iiladel^ 

alry's  Estate.   119   Cal.  406;   Hovey  phia,    620;    Minnig    v.    Batdorf,     5 

V.  Nellis,  98  Mich.  374    (citing  Doe  Pa.  St.  503. 


636 


LAW    OF    WILLS. 


(Iren  if  he  has  any,"  the  children  of  such  life  tenant  who  are 
in  existence  at  his  death  take  as  a  class.^^ 

So  a  legacy  payable  to  the  children  of  A,  begotten  by  him 
during  his  natural  life,  passes  to  A's  children,  whether  be- 
gotten before  or  after  the  death  of  testator.^ ^  And  a  gift  to 
A's  children  'hereafter  to  be  born  or  begotten,"  is  construed  to 
include  those  already  begotten.^^ 

So,  on  the  other  hand,  a  gift  to  the  "grandchildren,"  pay- 
able as  each  arrives  at  majority,  does  not  include  a  grand- 
child born  after  testator's  death  and  after  the  oldest  grand- 
child who  was  living  at  testator's  death  had  attained  his  ma- 
jority.^^ 

But  where  the  postponement  of  the  distribution  among  the 
beneficiaries  is  not  to  create  an  intermediate  estate,  but  simply 
to  give  the  executors,  having  power  of  the  distriljution,  a 
reasonable  time  in  which  to  convert  the  property  into  money ; 
and  the  distribution  to  the  class  of  beneficiaries  will  be  ascer- 
tained as  of  the  time  of  testator's  death  and  not  as  of  the  pe- 
riod of  distribution.^^ 


§549.     Time  of  vesting  taken  as  time  for  determining  members 
of  class. 

It  has  been  suggested  by  some  courts  that  where  the  inter- 
est does  not  vest  until  a  future  time,  as  in  case  of  a  contin- 
gent remainder  or  an  executory  devise,  that  the  class  should 
be  determined  at  the  time  when  such  interest  finally  vests. 
This  rule  has  been  suggested  even  in  the  case  of  the  word 
"heirs,"  and  with  greater  insistence  in  the  other  classes."^ 

50  Franklin  v.  Franklin,  91  Tenn.  53  Thomas  v.  Thomas,  149  Mo. 
119.      To   the   same   effect   are   For-       426.  • 

rest   Oil   Company  v.   Crawford,   77  54  Landwher's     Estate,     147     Pa. 

Fed.    106;     Knorr    v.     Millard,     57  State,   121. 

Mich.  265;  Hovey  v.  Nellis,  98  Mich.  ss  Bullock  v.  Downes,  9  H.  L.  Cas. 

374.  1 ;  Mortimore  v.  Mortimore,  L.  R.  4 

51  Parker  v.  Leach,  66  N.  H.  416;  App.  Cas.  448:  Coltsman  v.  Colts- 
Benton  v.  Benton,  66  N.  H.  169;  man.  L.  R.  3  H.  L.  121;  Doe  v. 
Ordway  V.  Dow,  55  N.  H.  11.  Frost,    3    B.   &    Aid.    546:     Doe     v. 

52  Parker  v.  Leach,  66  N.  H.  416.  Pratt,   5   B.   &  Aid.   731 ;    Stewart's 

Estate,     187     Pa.     St.     383:     Ken- 


LAW     OF     WILLS. 


637 


So  a  devise  to  one  for  life  and  at  his  "decease"  to  his  chil- 
dren, was  hold  to  include  all  his  children  living  at  testator's 
death,  whether  alive  at  the  death  of  the  life  tenant  or  not.^*^ 

A  gift  to  A  for  life  and  on  his  death  to  go  to  his  issue  ''per 
stirpes"  was  held,  to  be  a  gift  to  the  issue  in  existence  at  A'9 
death.^"^ 

This  distinction  possesses  the  advantage  of  simplicity  and 
accuracy  of  statement,  but  is  not  acquiesced  in  by  sufficient  ju- 
risdictions to  justify  the  statement  of  it  as  a  general  rule. 

§550.     Lapse  in  case  of  gift  to  a  class. — Common  law  rule. 

When  a  member  of  a  class  of  beneficiaries  dies  before  the 
time  fixed  under  the  will  for  determining  the  members  of  that 
class,  the  common-law  rule  applying  to  gifts  to  classes  generally 
was  that  the  children  and  descendants  of  such  deceased  mem- 
ber could  not  take  in  place  of  their  ancestor.^^  This  rule  is, 
of  course,  subject  to  modification  where  testator,  in  his  will, 
specifically  provides  that  upon  the  death  of  a  member  of  a 
class  before  the  time  of  the  distribution  leaving  descendants, 
the  share  of  such  member  shall  pass  to  such  descendants.^^ 

yon,  Petitioner,  17  R.  I.  149;  De  in  trust  for  the  parent  for  life, 
Wolfe  V.  Middleton,  18  R.  I.  810,  subject  to  open  and  let  in  after- 
citing  Goodright  v.  Searle,  2  Wils.  born  children,  and  to  be  divested  by 
29 ;  Cain  v.  Teare,  7  Jur.  567 ;  their  death  before  their  parents." 
Tucker's  Will,  63  Vt.  104.  Campbell   v.   Stokes,   142   N.   Y.   23. 

56  "These  words  are  construed  to  ss  Wilhelm  v.  Calder,  102  lo.  242 ; 
refer  to  the  time  of  payment  or  pos-  71  N.  W.  214;  Ashhurst  v.  Potter, 
session,  and  do  not  postpone  the  53  N.  J.  Eq.  608;  In  re  Truslow, 
moment  when  the  gift  shall  oper-  140  X.  Y.  599,  modifying  71  Hun, 
ate."  Lombard  v.  Willis,  147  Mass.  77;  Gammell  v.  Ernst,  19  R.  I. 
13,  citing  and  following  Shattuck  292:  33  Atl.  222;  Roundtree  v. 
V.  Stedman,  2  Pick.  468:  Childs  v.  Roundtree,  26  S.  C.  450.  Nor  does 
Russell,  11  Met.  16;  Wright  v.  the  husband  or  wife  of  such  de- 
Shaw,  5  Cush.  56 ;  Fay  v.  Sylves-  ceased  beneficiary  take  any  interest 
ter,  2  Gray,  171;  Bowditch  v.  An-  in  such  property.  Hardin  v.  Ar- 
drew,  8  Allen,  339;  Pike  v.  Steph-  teburg  (Ky.),  46,  718;  20  Ky.  L.  R. 
enson,  99  Mass.  188.  486. 

57  "It   is   plain  that  upon   settled  59  Crozier     v.     Cundall,     99     Ky. 

rules    of   construction,    the   issue   of  202 ;     Hopkins    v.    Keazer,    89    Me. 

any  child  of  the  testator  living  at  347;   Lee  v.  Welch,  163  Mass.  312; 

his    death,    took    under    the    will    a  Bragg    v.    Carter,    171    Mass.    324; 

vested  remainder   in   the  share  held  Dawson  v.  Shaefer,  52  N.  J.  Eq,  341  ; 


638  LAW    OF    WILLS. 

§551.     Lapse  in  case  of  gift  to  a  class. — Modern  statutory  rule. 

This  rule  is  further  modified  by  statutes  which  have  been 
passed  in  different  jurisdictions,  providing  that  if  certain 
named  beneficiaries  die  before  testator,  or  before  their  in- 
tersts  vest,  that  their  descendants  shall  take  the  share  to  which 
their  ancestor  would  have  been  entitled.®^  These  statutes  ap- 
ply generally  when  the  beneficiary  is  a  descendant  or  blood- 
relative  of  testator.^^ 

In  some  states  it  has  been  held  that  these  statutes  do  not  affect 
the  pre-existing  rule  upon  the  subject  of  gifts  to  classes.®^  The 
reason  which  the  courts  give  for  this  rule  is  that  in- 
dicated by  the  preceding  note,  that  is,  that  the  statutes  against 
lapse  apply  only  where  something  is  given  by  will  to  one  who 
dies  before  testator,  and,  therefore,  have  no  application  to 
gifts  to  a  class  where  the  gift  is  in  legal  effect  only  to  the  mem- 
bers of  the  class  in  existence  at  a  designated  time.  Where  the 
class  contains  only  one  member,  it  is  an  interesting  question 
whether  a  gift,  which  in  terms  is  a  gift  to  a  class,  will  lapse 
by  reason  of  the  death  of  the  one  member  of  the  class  before 
the  death  of  testator.  Upon  this  point  the  authorities  are  at 
variance.  In  an  English  case  testator  gave  property  to  the 
child  of  A,  or  to  his  children  if  there  should  be  more  than 
one.  At  the  time  of  making  the  will  A  had  but  one  child,  and 
never  had  more  than  one.      This  child  died  before  testator, 


affirmed  Shaefer  v  Dawson,  53  N.  J 
E.  238,  341 ;  Van  Houten  v.  Penning 
ton,  4  Halst.  Ch.  272,  745;  Wurt  v, 
Page,  4  C.  E.  Greene,  365;  Casca 
den's  Estate,  153  Pa.  St.  170; 
Denlinger's  Estate,  170  Pa.  St 
104;  Kelley  v.  Kelley,  182  Pa.  St 
131;   Haszard  v.  Haszard,   19  R.  I 


210;  Springer  v.  Congleton,  30  Ga. 
976;  Davie  v.  Wynn,  80  Ga.  673; 
Martin  v.  Trustees  of  Mercer  Uni- 
versity, 98  Ga.  320  (decided  by  a 
divided  court). 

"The  effect  of  the  devise  .  .  . 
was  to  give  to  children  living  at  the 
death    (of   testator)    and.   therefore. 


374;    ,34    Atl.    150;    R.    I.    Hospital  there  was   no  gift  to  Mrs.   F.,   and 

Co.  v.  Peckham,  20  R.  I.  332.  the  statute  only  applies  to  the  rep- 

60  See  See.  742,  et  seq.  resentatives  of  children  or  issue  to 

61  Bradley's  Estate,  166  Pa.  St.  whom  something  is  given."  In  re 
300;  Swallow  v.  Swallow,  166  Mass.  Harvey,  Harvey  v.  Gillow  (1893),  1 
241.    And  see  Sec.  743.  Ch.  567,  quoting  Olney  v.  Bates,  3 

62 /n    re    Harvey     (1893).    1    Ch.  Drew,  319. 
567 ;    Browne   v.    Hammond,   Johns. 


LAW     OF     WILLS. 


639 


leaving  issue.  The  co„rt  held  that  the  statnt.  preventing  lapse 
had  no  appUeation,  since  this  was  a  gift  to  a  class  and  no  mem- 
ber of  the  class  was  in  existence  at  the  time  fixed  for  determm- 


ing  it. 


In 'a  Georgia  case  testator  gave  property  to  the  "children 
of  A  "  At  the  death  of  testator  A  ^^as  dead  and  her  only  child 
.vas  dead,  leaving  surviving  two  children  ^.^  --^f/ f  J^ 
^vas  held  that  the  statute  against  lapse  applied  and  that  such 
children  of  the  deceased  child  took.^"* 

In  most  states  these  statutes  are  held  to  apply  to  gift,  to 
classes  as  well  as  to  gifts  to  individuals.-  "It  makes  no  dif- 
ference whether  the  hequest  is  such  to  a  relative  by  name  or 
.vhether  he  is   designated  in  the  will  only  by  his   relation- 

'^  These  statutes  preventing  a  lapse  in  cases  of  a  gift  to  a 
class  are  merely  vrima  facie  rules,  -versing  the  rules  of  the 
common  law,  but  subject  to  be  contradicted  by  the  contex  of 
the  will.  Thus  a  gift  specifically  to  those  of  a  certain  clas. 
.'Svho  may  then  be  living,"  or  any  similar  expression,  is  held 
to  prevent  the  application  of  the  statute.  Under  such  gift, 
the  issue  of  deceased  members  of  a  class  do  not  take. 


63  In  re  Harvey  (1893) ,  1  Ch.  567 
€4  Cheney  v.   Selnian,  71  Ga.  384. 
esHowland    v.    Slade,    155    Mass. 
415;   In  re  Stockbridge,   145  Mass. 
517;    Moore   v.    Weaver,    16    Gray, 
305-    Bray  v.   Piillen,   84  Me.   185; 
Strong  V.  Smith,  84  Mich.  567  ;  Par- 
ker vl  Leach,  66  N.  H.  416;  Benton 
V    Benton,   66  N.   H.   169:    Edgerly 
V.  Barker,  66  N.  H.  434;  28  L.  R.  A. 
C88;    Mather    v.    Copeland,    5    Ohio 
X.  P.   151;    Woolley  v.   Paxson,   46 
0    S.   307  ;   7  Ohio  Dec.  257 ;   Brad- 
ley's Estate,  166  Pa.  St.  300;  Moore 
V.   Dimond,   5   R.   I.   121:    Jones   v. 
Hunt,  96  Tenn.  369  ;  Wildberger  v. 
Cheeck,  94  Va.  517,  1897;  27  S.  E. 

441. 

66  Bray    v.    Pullen,    84    Me.    185. 

"Its  effect,  however,  will  be  modi- 
fied  by   the   Pub.    Sts.   C.   127,   Sec. 


23,  which  provide  that  where  a  leg- 
acy is  given  to  a  child  or  other  re- 
lation   of    the    testator,    and    such 
child  or  other  relative  dies  before  the 
testator,  leaving  issue  surviving  the 
testator,   such  issue  shall   take  leg- 
acy unless  a  different  intent  is  man- 
ifested   by    the    will.      It    does    not 
matter,  as  has  been  held,  that  such 
child    or    other    relative    is    treated 
as   one  of  a  class  by  the  testator; 
the  issue  will  still  take  the  legacy 
which    the    deceased    person    would 
have  taken  had  he  survived  the  tes- 
tator." Howland  v.  Slade,  155  Mass. 

415. 

67Bigelow  v.  Clap,  166  Mass. 
88;  Bragg  v.  Carter,  171  Mass. 
324 :  Almy  v.  Jones,  17  R.  I.  265 ; 
12  L.  R.  A.  414. 


040  LAW     OF     WILLS. 

A  provision  that  a  legacy  should  be  paid  to  "their  or  each 
of  their  heirs"  in  case  the  beneficiary  should  die  before  the 
testator,  gives  a  legacy  of  the  amount  specified  to  be  divided 
among  all  the  heirs  of  such  person,  and  does  not  give  a  leg- 
acy of  such  amount  to  each  of  the  heirs  separately.*'* 

The  courts  prefer,  wherever  possible,  a  construction  which 
allows  the  issue  of  the  deceased  beneficiary  to  take  the  share 
which  its  j)arent  would  have  taken  had  he  lived,  esi^ecially 
where  such  parent  is  a  descendant  of  testator. ''^ 

The  direction  for  a  substitution  of  a  deceased  beneficiary 
may  be  made  by  the  general  intention  of  the  will  without 
any  specific  provision  to  that  effect.'''*^  A  special  application  of 
this  principle  is  found  in  a  devise  to  a  class  with  a  provision 
that  if  any  of  the  class  died  without  issue  their  interest  shall 
pass  to  the  survivor.  Under  such  a  gift  -if  A,  one  of  the  class, 
has  died  leaving  children,  and  subsequently  B,  another  of  the 
class,  dies  without  issue,  the  question  is  presented  whether 
the  children  of  A  will  share  in  the  property  given  to  B,  or 
whether  it  will  pass  only  to  the  surviving  members  of  the  orig- 
inal class.  It  is  held  in  some  jurisdictions  that  such  a  gift 
is  to  be  divided  among  the  surviving  members  of  the  original 
class  to  the  exclusion  of  the  children  of  a  member  previously  de- 
ceased.'^^  Where  the  general  intention  of  the  will,  however,  is 
manifestly  that  the  property  disposed  of  is  to  be  equally  di- 
vided among  the  stocks  representing  members  of  the  original 
class,  the  children  of  A  will  share  in  the  jiroj^erty  devised  to 
B.'2 

68  Ruggles    V.    Randall,    70    Conn.  mainder  man  who  was  not  of   tes- 

44.     Cleghorn  v.  Scott,  80  Ga.  496,  tatoi"s    blood    should    not    take    aa 

[inferred  from  a  direction  to  divide  long  as  any  of  testator's  blood  sur- 

certain  property  "on  the  same  prin-  vived. ) 

eiple    last    provided,"   which   direct-  7i  Ashhurst   v.    Potter,    53    IST.   J. 

ed  a  substitution  of  children  for  de-  Eq.  6()S ;   In  re  Truslow,  140  N.  Y. 

ceased  parents].  ,599,  modifying  71  Hun,  77;  Gam- 
es Soper  V.  Brown,  136  N.  Y.  244,  mell  v.  Ernst,  19  R.  I.  292;  33  Atl. 

affirming  65  Hun,   155.     But  a  gift  222:  Roundtree  v.  Roundtree,  26  S. 

to  the  "surviving"  members  ov  the  C.  450. 

class    is    so    clear    as    te    leave    no  t2  Graves   v.    Spurr,    97    Ky.    051, 

room    for    construction.      ]\Iullarky  citing    Wilmot    v.    Wilmot.    8    Ves. 

V.  Sullivan,  136  N.  Y.  227.  Jr.    10,    Birney    v.      Richardson.     5 

"0  Cooper  V.  Cooper,  7  Houst.  Del.  Dana,  424 ;  Harris  v.  Berry,  7  Bush. 

488.      (Inferred  from  an  expression  113:     Cummings    v.      Stearns,      161 

of   the   testator's  wish  that  the  re-  Mass.  506. 


LAW     OF     WILLS. 


641 


CHAPTER  XXIV. 

DISTRIBUTION  PER  STIRPES  AND  PER  CAPITA. 


§552.     General  principles  of  distribution  in  intestacy. 

A  very  important  question  that  presents  itself  for  consid- 
eration under  the  law  of  intestate  succession,  and  under  the 
law  of  wills  alike,  is  the  question  whether  distribution  amonc 
those  who  are  to  take  shall  be  per  stirpes  pr  per  capita.  The 
diflference  between  these  two  clases  of  distribution  manifests 
itself  in  two  different  methods:  first,  with  reference  to  the  de- 
termination of  the  persons  who  shall  take ;  second,  with  refer- 
ence to  the  share  which  passes  to  each  person  thus  ascer- 
tained. 

First,  with  reference  to  the  determination  of  the  persons 
who  shall  take,  a  distribution  per  stirpes  means  that  the  prin- 
ciple of  representation  so  applies  that  the  heirs  or  represen- 
tatives of  one  previously  deceased,  who  would  have  taken  if 
alive,  will  take  by  the  right  of  their  ancestor.  A  distribution 
per  capita  means  that  no  representation  applies,  and  that  the 
favored  class  is  to  be  determined  upon  as  it  exists  at  the  time 
prescribed  by  the  law  or  the  will,  and  that  the  heirs  or  represen- 
tatives of  one  previously  deceased  can  not  take,  although  such 
decedent  would  have  taken  in  his  own  right,  as  a  member 
of  the  favored  class,  had  he  survived. 


642  LAW    OF    WILLS. 

Tke  question  of  distribution  per  stirpes  or  per  capita  also 
affects  the  determination  of  the  beneficiaries  under  a  will  in 
another  way.  Under  a  distribution  per  stirpes  the  children 
of  living  parents  take  nothing,  the  share  which  passes  to  that 
branch  or  stock  being  taken  by  such  living  parents.  A  gift 
per  capita  pasess  to  all  who  are  included  within  the  descrip- 
tion of  the  beneficiaries,  irrespective  of  whether  their  parents 
are  alive  or  not. 

Second,  with  reference  to  the  share  which  the  beneficiaries 
thus  indicated  are  to  take,  the  question  whether  the  distribu- 
tion is  per  stirpes  or  per  capita  is  often  of  great  importance. 
A  distribution  per  capita  is  an  equal  division  of  the  property 
to  be  divided  among  the  beneficiaries,  each  receiving  the  same 
share  as  each  of  the  others,  without  reference  to  the  interme- 
diate course  of  descent  from  the  ancestor.  A  distribution  per 
stirpes,  on  the  other  hand,  is  a  distribution  with  reference  to 
the  intermediate  course  of  descent  from  the  ancestor.  It  is 
literally  a  distribution  according  to  "stock."  It  gives  the  bene- 
ficiaries each  a  share  in  the  property  to  be  distributed,  not  nec- 
essarily equal,  but  the  proper  fraction  of  the  fraction  to 
which  the  person  through  whom  he  claims  from  the  ancestor 
would  have  been  entitled.^ 


1  An  elementary  illustration  may  to  those  claiming  through  C.  B's 
make  this  clear.  A  has  two  sons,  two  children  will  then  divide  B's 
B  and  C.  B  dies  before  A,  leav-  share  between  them,  each  thus  re- 
ing  two  children,  D  and  E.  C  also  ceiving  one-fourth  of  the  original 
dies  before  A,  leaving  three  chil-  estate.  C's  three  children  will  di- 
dren,  F,  G  and  H.  On  A's  death  divide  C's  share  among  them,  each 
there  are  thus  five  grandchildren,  thus  receiving  one-sixth  of  the  orig- 
whom  we  will  suppose  are  the  bene-  inal  estate.  This  principle  of  dis- 
ficiaries  of  his  will.  If  the  will  tribution  per  stirpes  is,  of  course, 
calls  for  a  distribution  of  the  prop-  capable  of  indefinite  extension, 
erty  per  capita,  each  of  these  five  Thus,  if  D  and  H  had  each  died 
grandchildren  will  receiA^e  one-fifth  before  A,  D  leaving  one  child  and 
of  the  property.  If  the  distribu-  H  two,  D's  one  child  would,  on  dis- 
tion  is  to  be  made  per  stirpes,  the  tribution  per  stirpes,  receive  one- 
property  is  first  divided  according  fourth  of  the  original  estate,  and 
to  the  stock,  or  immediate  course  H's  two  children  would  each  re- 
of  descent — that  is,  one-half  to  those  ceive  a  twelfth  of  the  original  es- 
claiming    through    B,    and    one-half  tate. 


LAW    OF    WILLS.  ^^'^ 

Whether  in  cases  of  intestacy  realty  descends  per  stirpes 
or  per  capita  is  a  question  which  should  be  considered  here 
only  so  far  as  it  afi'ects  the  construction  of  wills.     It  is  some- 
times laid  down  as  a  general  proposition,  both  at  common  law 
and  under  modern  statutes  of  descent  and  distribution,  that 
where  the  heirs  are   all  in  the' same   degree  of   relationship 
to  the  ancestor   they  take  per  capita,  but  if  in  unequal  degrees 
thev  take  per  stirpes.     This  is  without  doubt  correct  as  a  broad 
and  general  proposition,  but  like  most  legal  principles  it  has 
its  exceptions  and  qualifications.     Under  modern  statutes  it 
is  generally  indicated  in  a  clear  manner  by  the  use  of  such 
expressions'  as  '^or  legal  representatives,"  where  the  doctrine 
of  representation   applies.      Where  the   statute  provides   that 
the  property  shall  descend  to  a  certain  class,  and  omits     or 
their  legal  representatives,"  or  some  similar  phrase,  the  prin- 
ciple  of  representation   does   not   apply.^      The   same  princi- 
ples, of  course,  apply  to  distribution  of  personalty  under  the 
statute. 

§553.     Statutory   distribution   adopted  in   absence   of  testator's 
manifest'  intention. 

The  nature  of  descent  and  distribution  under  the  statute 
is  important  because,  unless  the  intention  of  testator  is  clearly 

2  Clavton     V.     Drake,    17    0.    S.  provided  for  by  the  words  'or  their 

legal  representatives,'  and  as  there 

"The  plaintiffs,  therefore,  are  not  are   no   such   words    in   this   clause, 

entitled  under  the  statute  to  share  it  is  not  easy  to  perceive  how  the 

in   the   inheritance,     unless,     as     is  words  'next  of  km'  can  be  construed 

claimed  by  their  counsel,   they  can  as  embracing  those  not  next  of  km. 

be  let  in  as  the  legal  representatives  These  words  describe  a  class  of  per- 

of   the   deceased   grand-uncle  whose  sons  to  be  ascertamed  by  the  rules 

children  and  grandchildren  they  are.  of  law ;   and,  when  ascertamed,  the 

But  the  clause  of  the  statute  which  words   become   as   deflmte   and^spe- 

governs    the    descent    in    this    case  cific    as     the    words      children      or 

gives  the  estate  to  the  next  of  kin  'brothers    and    sisters,    ^^\^''  ^ 

without  any  reference  to  the  prin-  effectually    exclusive    of    all    other 

ciple  of  representation.  In  the  prior  persons.     None   of   these  words    e. 

clauses   of   the   same   section,   when  vi    termini,    import  /-epresenta  ion 

the  estate  is  given  to  'children'  or  and  whether  that  principle  sha  1  be 

to  'brothers  and  sisters'  the  princi-  applied  in  respect  to  any  of  them, 

pie    of    representation    is    expressly  must  depend  on  the  express   provi- 


644  LAW     OF     WILLS. 

manifest  in  bis  will,  the  courts  construe  a  will  by  wbicli  prop- 
erty is  to  be  divided  among  a  specified  class  as  contemplating  a 
division  in  analogy  to  the  statute  of  descent  and  distribution.'^ 
Thus  when  the  persons  designated  stand  in  equal  degree  or 
degrees  of  relationship  to  testator,  and  the  devise  or  bequest  is 
to  enure  to  the  benefit  of  all  of  them,  the  court  will  order  a 
division  per  capita.'^ 

Thus  a  devise  to  the  '^issue"  of  testatrix  was  held  to  call 
for  an  equal  division  among  the  children  and  grandchildren 
of  testatrix  where  all  the  children  of  testatrix  were  living  and 
there  was  no  opportunity  for  any  substitutional  taking.^ 

While  if  the  devisees  or  legatees  stand  in  unequal  degrees 
of  relationship  to  testator  the  law  favors  a  construction  which 
results  in  a  distribution  pe?'  stirpes  among  the  beneficiaries.^ 

§554.     Intention  clear. — Construction  of  specific  forms  of  devise. 
— Per  capita. 

When  the  will  shows  a  clear  intention  of  testator  of  devis- 
ing either  per  capita  or  per  stirpes,  the  courts  give  effect  to 
such  intention  without  reference  to  the  statute  of  descents  and 

sions    of    the    statute.      If    they   di-  3  Huggins    v.    Huggins.     72     Ga. 

rect    the    admission    of    'legal    rep-  825;   Kelley  v.  Vigas,  112  111.  242: 

resentatives'   into   any   class   of   de-  Hills,  v.   Barnard,   152  Mass.   G7 ;    9 

scendants,  they  must,  of  course,  be  L.  E.  A.  211;   Ferer  v.  Pyne,  80  X. 

admitted,   but   if   they  exclude   rep-  Y.  281 ;   Gerrish  v.  Hinman,  8  Ore. 

resentatives,    or    are    silent    on    the  348 :    Pearce   v.    Rickard,    18    R.    I. 

subject,    courts    have    no    power    to  142;    19    L.    R.    A.     472;     Lett    v. 

enlarge  the  plain  terms  of  the  stat-  Thompson,    36    S.    Car.    38. 

ute,    by    admitting    into    any    class  *  Pearce  v.  Rickard,  18  R.  I.  142 ; 

those  who  do  not  come  within  the  19  L.  R.  A.  472;  Hodges  v.  Phelps, 

meaning    of    the    words    descriptive  65  Vt.  303 ;   26  Atl.  625. 

of   that   class."      Clayton   v.   Drake,  s  Pearce  v.  Rickard,  18  R.  I.  142 ; 

17  O.  S.  367.     While  in  this  partic-  19  L.  R.  A.  472. 

ular    respect   the   statute    construed  s  Wright    v.    Bell,    18    Ont.    App. 

in   the   case   cited   in    the   note   has  25;    Kilgore    v.    Kilgore,    127    Ind. 

since  been  so  amended  as  to  permit  276;     Hills   v.   Barnard,   152   Mass. 

representation   in   case   of   the   next  67;  9  L.  R.  A.  211;  Lott  v.  Tliomp- 

of    kin,    the    principle    of    the    case  son,   36    S.    Car.    38. 
holds   good    in    statutes   where   rep- 
resentation  is   not   specifically   pro- 
vided  for. 


LAW     OF     WILLS. 


645 


distributions,  since  testator  has  in  this  respect  full  and  ample 
power  to  direct  the  descent  of  his  property.'^  What  intention 
is  expressed  by  the  words  used  is  the  practical  question,  then, 
under  this  subject,  and  one  which  is  best  answered  by  discuss- 
ing the  effect  of  the  common  phrases  used  in  wills. 

A  direction  in  a  will  that  property  is  to  be  divided  among  the 
members  of  a  specified  class  '^equally,"  is  held  to  call  for  a  dis- 
tribution per  capita.^  And  this  rule  is  not  altered  by  the  fact 
that  the  income  is  to  be  divided  per  stirpes  until  the  time  when 
the  "equal"  division  of  the  property  is  to  be  made.^ 

By  the  terms  of  a  will  one  person  may  be  balanced  against 
a  class.  Thus  a  provision  that  an  income  should  be  "equally 
divided"  between  the  widow  of  testator  and  the  heirs  of  tes- 
tator's mother,  was  held  to  mean  that  the  widow  should  re- 
ceive half  the  income.^  *^ 

The  devisees  take  per  capita  and  not  per  stirpes  under  a 
will  directing  an  equal  division  "between"  the  testator's  broth- 
ers and  sisters  and  his  wife's  brothers  and  sisters.^  ^ 

A  direction  for  the  division  of  certain  specified  property 


7  Howard  v.  Howard,  30  Ala. 
391;  McCartney  v.  Osburn,  118 
HI.  404;  West  v.  Rassman,  135  Ind. 
278;  McQueen  v.  Lilly,  131  Mo. 
9;   Bodin  v.  Brown,  154  N.  Y.  778. 

sin  re  Stone  (C.  A.),  (1895), 
2  Ch.  196;  Houghton  v.  Bell,  23 
Can.  S.  C.  498;  West  v.  Rassman, 
135  Ind.  278.  ("The  children  of 
these  parties  above  named,  without 
any  regard  to  numbers,  shall  be 
counted  as  one  family  and  equally 
divided  among  them  all.")  In  re 
Bates,  159  Mass.  252 ;  McQueeu  v. 
Lilly,  131  Mo.  9  ("equal  interests" 
given  to  several )  ;  Johnson  v. 
Knight,  117  N.  Car.  122;  Freeman 
V.  Knight,  2  Ired.  Eq.  72 ;  Tuttle  v. 
Puitt,  68  N.  Car.  543;  Bodin  v. 
Brown,  154  N.  Y.  778;  McKelvey 
V.  McKelvey,  43  O.  S.  213;  Chafee 
V.  Maker,  17  R.  I.  739;  Walker  v. 
Webster,    95    Va.    377. 


9//X  re  Stone  (C.  A.),  (1895),  2 
Ch.   196;    12  Rep.   415. 

10  Perkins  v.  Stearns,  103  Mass. 
247. 

Contra,  Hick's  Estate,  134  Pa.  St. 
507,  where  a  provision  that  testa- 
tor's property  should  be  "equally 
divided  between"  his  wife  and  his 
two  daughters,  was  held  to  give 
one-third  of  his  property  to  each. 
So  In  re  Holder,  21  R.  I.  48. 

11  Kling  V.  Schnellbecker,  107  lo. 
630  (distinguishing  Fissel's  Appeal, 
27  Pa.  St.  55:  Young's  Appeal,  83 
Pa.  59 ;  Bassett  v.  Granger,  100 
Mass.  348 ;  Holbrook  v.  Harrington, 
16  Gray,  102:  Congreve  v.  Palmer, 
16  Beav.  435:  Crow  v.  Crow,  1 
Leigh,  74:  Hoxton  v.  Griffith,  18 
Gratt.    574. 


646 


LAW    OF     WILLS. 


between  the  members  of  a  group  "share  and  share  alike"  is 
construed  as  a  direction  to  distribute  j^c  capita}  ~  So  a  direc- 
tion to  distribute  an  estate  share  and  share  alike,  directing 
that  testator's  sister  should  receive  a  share,  his  stepdaughter 
to  receive  one  share,  and  then  "to  each  of  mj  nephews  and 
nieces  then  living,  one  share,"  is  a  direction  for  a  per  capita 
distribution  in  which  the  nephews  share  individually  and  not 
as  a  class.-^^ 

§555.     Per  stirpes. — Substitution  specifically  directed. 

A  devise  to  members  of  a  class,  containing  the  express  pro- 
vision that  if  any  member  of  such  class  shall  die,  the  "issue" 
or  "heirs"  of  such  decedent,  or  his  "descendants,"  shall  take 
his  share,  is  held  to  direct  a  distribution  per  stirpes}'^  So  a 
devise  to  testator's  nephews  and  nieces  named,  "in  equal  shares 
by  right  of  representation,"  calls  for  a  division  per  stirpes}^ 

§556.     Per  stirpes. — "Heirs." 

A  devise  to  the  "heirs"  of  a  named  person,  whether  the  tes- 
tator or  another  is,  ordinarily,  in  the  absence  of  any  expression 
showing  a  contrary  intention,  taken  as  a  direction  for  a  dis- 
tribution per  stirpes}^ 


12  Copeland  v.  Copeland,  64  111 
App.  100;  MeFatridge  v.  Holtz 
claw,  94  Ky.  352;  22  S.  W.  439 
Shattuck  V.  Balcom,  170  Mass 
245;  Gulp  v.  Lee,  109  N.  C.  675 
Budd  V.  Haines,  52  N.  J.  Eq.  488 
29  Atl.  170;  Bisson  v.  R.  R.  143  N 
Y.  125;  Scott's  Estate,  163  Pa 
St.  165;  Dukes  v.  Faulk,  37  S.  C 
255. 

isPenney's  Estate,  159  Pa.  St. 
346. 

1*  Geery  v.  Skelding,  62  Conn. 
499  ("issue"  of  decedent)  ;  Jackson 
V.  Alsop,  67  Conn.  249;  Johnson 
V.  Bodine,  108  lo,  594;  Fields  v. 
Fields,  (1893),  —  Ky.  — ;  20  S.  W. 
1042  ("issue"  of  decedent)  ;  Cum- 
mings  V.  Cummings,  146  Mass. 
501  :    Niles  v.  Almy,   161   Mass.  29 


("issue"  of  decedent)  ;  Dawson  v. 
Schaefer,  52  X.  J.  Eq.  341  (to 
"heir  or  heirs"  of  decedent)  ;  Wood- 
ward V.  James,  115  X.  Y.  346, 
Patrick's  Estate,  162  Pa.  St.  175 
("descendants"  of  decedent)  ;  Rhode 
Island  Hospital  Trust  Company  v. 
Harris,  20  R.  I.  408. 

15  Siders  v.  Siders,  169  Mass. 
523.  So  Merrill  v.  Curtis  (X.  H.) 
39  Atl.  973. 

16  Conklin  v.  Davis,  63  Conn. 
377;  Healy  v.  Healy,  70  Conn.  467 
(to  "legal  heirs")  ;  Jackson  v.  Al- 
sop, 67  Conn.  249 ;  Richey  v.  John- 
son, 30  O.  S.  288;  Asliburner's  Es- 
tate, 159  Pa.  St.  545;  Rowland's 
Estate,  151  Pa.  St.  25;  Forrest  v 
Porch,  100  Tenn.  391. 


LAW    OF    WILLS. 


647 


And  a  devise  to  "children  and  heirs"  of  two  persons  named, 
to  be  divided  among  them  "equally,"  was  held  to  call  for  a  dis- 
tribution per  stirpes,  since  the  word  "heirs"  so  strongly  im- 
plies representation  that  it  overcomes  the  force  of  the  word 
"children"  and  "equally,"  both  of  which  call  for  a  distribu- 
tion per  capita}'^ 

But  where  the  word  "heirs"  is 'used  as  descriptive  of  persons 
otherwise  indicated,  it  does  not  call  for  a  distribution  per 
stirpes.  Thus  a  devise  to  "my  nephews  and  nieces,  they  being 
my  lawful  heirs,"  was  held  to  indicate  a  distribution  per 
capita}^ 

§557.     Ambiguous   gifts. 

Whether  the  testator,  in  directing  a  division,  combines  an  ex- 
pression which  indicates  a  division  per  capita  with  one  which 
indicates  a  division  per  stirpes,  a  more  difficult  question  arises. 

^"Equally"  to  "HeirsJ" — Thus,  a  devise  to  the  "heirs"  of 
a  designated  person  or  persons  "equally"  has  been  held  in 
some  jurisdictions  to  call  for  a  division  per  stirpes}^  In 
other  jurisdictions  such  a  form  of  expression  is  construed  to 
call  for  distribution  per  capita?^  And  a  devise  to  be  di- 
vided among  the  "heirs"  of  a  designated  person  "share  and 
share  alike"  is  held  to  call  for  a  division  per  capita?^ 

17  Ashburner's     Estate,    159     Pa.  Lockart,  3  Jones  Eq.  205;  Johnston 

St.  545.  V.  Knight,  117  K  Car.  122;  McKel- 

is  Post  V.  Jackson,  70  Conn.  283.  vey    v.    McKelvey,    43    0.    S.    213; 

isHoch's  Estate,  154  Pa.  St.  417  Ramsey    v.    Stephenson     (Or.),    57 

("to  bo,  divided  in  equal  shares  to"  Pac.  105;  56  Pac.  520. 

the   legal   heirs   of   testator);    Tay-  21  McFatridge     v.    Holtzclaw,    94 

lor    Y.    Fauver     (Va.),     (1898),    28  Ky.    352;     22    S.    W.    439;     Bisson 

S.  E.  317    ("to  my  sisters  or  their  v.  R.  R.  143  N.  Y.  125;  Scott's  Es- 

heirs  equal  to  all").  tate,    163    Pa.    St.    165;     Dukes    v. 

20  Best  V.  Farris,  21  111.  App.  49  Faulk,   37    S.   Car.   255.     So  a  gift 

("equally      divided      among        my  to  be  divided  "between  the  heirs"  of 

heirs")  ;    Kelley   v.   Vigas,    112   111.  A   calls    for   a    division   per   capita. 

242;   54  Am.  Rep.  235;   Brittain  v.  Record   v.   Fields    (Mo.)    55    S.    W. 

Carson,    46    Md.    186;    Maguire    v.  1021. 
Moore,    108    Mo.    267;     Lockart    v. 


648  LAW     OF     WILLS. 

§558.     Gift  to  children  of  two  or  more  persons. 

When  testator  devises  property  to  the  "children"  of  two  or 
more  persons  who  are  not  intermarried  with  each  other,  the 
general  rule  is  said  to  be  that  this  calls  for  a  distribution 
per  capita,  in  the  absence  of  distributive  words,  or  other  form 
of  expression  showing  a  different  intent.^"  Thus,  a  gift  to 
the  two  married  daughters  of  testatrix  for  life,  and  at  their 
death  to  their  children  share  and  share  alike,  was  held  to  be 
a  gift  per  capita.^^  Where  testatrix  gave  a  certain  fund  to 
two  granddaughters  for  life,  and  provided  that  upon  their 
decease  the  same  should  "be  divided  and  distributed  equally 
to  their  children  /jer  capita/'  two  of  whom  were  then  in  being, 
such  a  devise  is  a  gift  to  the  great-grandchildren  as  a  class; 
vesting  in  point  of  right,  at  death  of  testatrix,  in  the  then 
two  members  constituting  the  class,  and  in  those  after-born  as 
soon  as  born.-^ 

But  this  rule  is  not  unyielding.  The  form  of  the  devise  may 
show  an  intention  to  give  per  stirpes,  and  such  expressed  in- 
tention will  be  given  full  force  and  effect.  This  intention  is 
often  expresed  by  the  use  of  distributive  words,^^ 

A  gift  "to  the  families  of  my  brother  A's  four  children 
and  to  the  five  children  of  my  sister  B"  was  held  to  be  a 
gift  to  the  children  of  A  and  of  B  per  stirpes?^  When  testatrix 
directs  the  residuum  of  her  property  to  be  equally  divided 

22Bethea    v.    Bethea,      116     Ala.  Henry     v.    Thomas,    118     Ind.    23, 

265;     Wells    v.    Hutton,    77    Mich.  Baleom  v.  Haynes,  14  All.  204;  Rec- 

129;   Budd  v.  Haines,  52  N.  J.  Eq.  ord  v.  Fields   (Mo.),  55  S.  W.  1021. 

488.  (Gift   to   be   divided   "between"   the 

23  Budd  V.   Haines,   52  N.  J,   Eq.  heirs    of    testator's    two   brothers); 
488.  Ihrie's    Estate,    162     Pa.     St.     369 

24  Johnson    v.    Webber,    65    Conn.  (devise     to     be     divided    "between" 
501.  the  children  of  a  person  named  and 

25  Bethea  v.  Bethea,  116  Ala.  265  the  grandchildren  of  her  husband)  ; 
(a    devise    to     the     children     that  Ashburner's  Estate,  159  Pa.  St.  545 

"each"  of  testator's  sons  may  have  (to   be    divided    between    the    "chil- 

surviving  him)  ;   White  v.  Holland,  dren  and  heirs"  of  testator's  sons). 

92    Ga.    216;      18    S.    E.    17     (evi-  26  Allen's  Succession,  48  La.  Ann. 

dence     of     relationship      of     bene-  1036. 
ficiaries      to      testator      admitted). 


LAW    or    WILLS. 


649 


"between  her  heirs   and  her  husband's  he.rs"   it  should  h 
divided  into  two  equal  parts,  giving  to  her  heirs  one  half  and 
;  her  hushand's  heirs  one-half  per  sUrpes^^nA  not  per  caprf«, 
since  they  do  not  all  stand  in  the  same  relation  to  testatrix 
So  where  it  is  to  be  divided  "between"  the  relatives  of  testa- 
tor  and  those  of  his  wife.^* 

§559.     Gift  to  pass  as  In  intestacy. 

^  devise  to  pass  according  to  the  intestate  law  calls  for  a 
distribution  among  the  persons  and  -^f  7™P~  ^^^ 
the  law  prescribes  in  case  of  intestacy.'^''     Thus,  if  the  widow 
s  one  I  the  beneficiaries,  she  is  to  receive  the  year's  al  ow- 
ance  and  the  personal  property  which  she  -"'^  ™  j° 
case  of   intestacy.='«      Where  the  will   provides  that  certain 
property  should  pass  "in  equal  parts"  to  the  persons  who  would 
be  entirted  to  i    under  the  statute  of  descents  and  distr  bu- 
dons   it  is  held  that  the  statute  must  be  followed  to  ascertain 
X  the  beneficiaries  are,  but  that  a  division   among  them 
must  be  made  per  capita.^^ 


27Bassett  v.   Granger,   100  Mass. 
348;     Ross's   Ex'r  v.  Kiger,   42  W. 

Va.  402. 

2s  Young's  Appeal,  83  Pa.  St.  59. 

2'.>  Schwartz's  Estate,   168   Pa.  St. 
204. 


30  Wilson    V.    Morris,     94    Tenn. 

547. 

31  Walker  v.  Webster,  95  Va. 
377,  citing  Freeman  v.  Knight,  2 
Irecl.  Eq.  72;  Tuttle  v.  Puitt,  68 
N.  Car.  543. 


650 


LAW     OF    WILLS. 


CHAPTER  XXV. 

NATURE  OF  ESTATE  GIVEN  BY  WILL. 


§560.     Fee  simple. — General  common  law  rule. 

At  the  common  law  the  heir  was  especially  favored  in  the 
construction  of  a  will,  and  could  be  disinherited  only  by  words 
which  disposed  of  testator's  entire  estate.^^  This  general  rule  is 
still  stated  in  this  form  by  many  courts,  but  in  several  im- 
portant matters  its  application  has  been  entirely  changed.  In 
none  is  it  more  marked  than  in  the  rules  determining  what 
kind  of  an  estate  as  to  duration  passes  by  a  devise.  At  com- 
mon law  it  was  well  settled  that  a  devise  to  one,  it  not  ap- 
pearing from  the  will  whether  the  devise  meant  to  pass  a  life 
estate  or  an  estate  of  inheritance,  passed  a  life  estate  only.^^ 

§561.     Examples  of  words  passing  a  fee  simple  at  common  law. 

But  it  has  always  been  a  recognized  principle  of  the  law 
construction  that  wills  were  to  be  construed  more  liberally 
than  deeds  in  order  that  the  intention  of  testator  might  be 
carried    into    effect.^"*       In    order    to  pass  a    fee,    therefore, 

32  See  Sec.  407;    Robinson  v.  Os-       iclis,  U5  Ind.  1,34;  Roy  v.  Rowe,  90 
tendorff,  38  S.  Car.  66.  Ind.  .54;  Varney  v.  Stevens,  22  Me. 

33  Robinson  v.  Randolph,  21   Fla.       331. 

629;     Mulvane    v.    Rude,    140    Ind.  3*  Cleveland   v.    Spilman,   25   Ind. 

476 :    4.5   N.   E.    659 ;    Korf   v.   Ger-       95 ;    Roy  v.  Rowe,  90  Ind.  54. 


LAW    OF    WILLS. 


651 


it  was   not   absolutely  necessary   to  nse   the  technical   word 
"heirs,"  though,  of  course,  a  grant  to  A  and  his  heirs  was  the 
most  appropriate  and  unmistakable  method  of  devising  a  fee 
simple  to  A.^^     Thus  a  devise  to  one  "forever"  was  held  to 
pass  a  fee,=^'^  as  was  a  devise  to  A  "and  his  children  forever  ;"3' 
so  a  gift  to  A  and  "her  heirs  on  ier  father's  side"  passes  a  fee  ;=^» 
so  is  a  devise  "to  hold  the  same  absolute"  f""  or  a  devise  pro- 
viding "this  property  is  entirely  hers  and  at  her  disposal."  ^"' 
A  devise  whereby  some  personal  charge  was  imposed  upon 
the  devisee,  as  a  devise  subject  to  the  payment  of  specified 
sums  to  other  beneficiaries,  was  held  to  show  testator's  inten- 
tion to  pass  a  fee  to  such  devisee,  since  otherwise  the  devise 
might  not  prove  a  beneficial  interest.*^      So  where  real  prop- 
erty was  devised  to  one  for  life  and  then  to  another,  it  was 
generally  held  to  pass  a  fee  to  such  other,  especially  where  the 
taker  of  the  life  estate  was  younger  than  the  person  to  whom 
the  devise  over  was  made.^"^      So  a   devise  to  A  of  certain 
realty  for  life,  remainder  in  part  of  such  realty  to  B  and  C, 
and  the  residue  of  such  realty  to  A  to  dispose  of  as  she  thinks 
fit  at  her  death,  gives  A  a  fee  in  that  part  of  the  realty  not 
disposed  of  to  B  and  C.^^ 


35  Georgia,  etc.,  Co.  v.  Archer,  87 
Ga.  237;  Wolfer  v.  Hemmer,  144 
111.  .554;  Young  v.  Kinkead,  101  Ky. 
252  (1897),  40  S.  W.  77G;  Mc- 
Cauley  v.  Buekner,  87  Ky.  191; 
Stafford  v.  Martin,  —  Md.  — ,  1892; 
23  Atl.  734;  In  re  Allen,  151  N.  Y. 
243;  Darlington  v.  Darlington,  IGO 
Pa.  St.  G5. 

36  Toman   v.   Dunlop,   18   Pa.    St. 

72. 

37  Hood  V.  Dawson,  98  Ky.  285. 

38  Johnson  V.   Whiton,   159   Mass. 

424. 

39  Anders  v.  Gerhard,  140  Pa.  St, 

153. 

40  Dills  V.  Adams  (Ky.),  43  S.W 

680. 

41  Ross  V.  Ross,  135  Ind.  367 
Korf  V.  Gerichs,  145  Ind.  134 
Donohue  v.  Donohue,  54  Kai;i.  136 
McLellan    v.    Turner,    15    Me.    436 


V,"ait  V.  Belding,  24  Pick.    (Mass.) 

129;   Fuller  v.  Fuller,  84  Me.  475; 

Snyder    v.    Nesbitt,    77    Md.    576; 

Brooks   V.   Kip,    54   N.   J.   Eq.    462; 

Jackson  v.  Bull,  10  Johns.    (N.  Y.) 

148.     But  not   where   the  gift  was 

expressly    limited    to    a    life    estate. 
Koff     V.    Herrman,    82     Md.    339; 

Henry  v.   Pittsburg  Clay  Mfg.   Co., 

80  Fed.  485. 

42  Mills  V.  Franklin,  128  Ind.  444; 

Backus  V.  Baltimore  Pres.  Assoc., 
77  Md.  50;  Kuykendall  v.  Devec- 
mon,  78  Md.  573;  Flickinger  v. 
Saimi,  40  0.  S.  591;  Boutelle  v. 
Bank,  17  R.  I.  781 ;  Stead  v.  Man- 
ton,  18  R.  I.  163.  (But  not  where 
there  was  a  devise  over  after  the 
second  life  estate.  Smathers  v. 
Moody,  112  N.  Car.  791;  Goodrich 
V.  Pearce,  83  Ga.  781. 

43  Byrne  v.   Weller,   61    Ark.   366. 


652  LAW     OF     WILLS. 

A  gift  of  all  of  testator's  "estate,"  "property,"  or  some, 
such  word,  when  used  to  describe  the  nature  of  the  estate 
granted,  passed  a  fee  simple.'*'*  But  when  used  merely  as 
words  of  description  of  the  property  devised,  without  any 
reference  to  the  estate  created,  such  words  did  not  pass  a  fee.'** 
So  a  gift  to  several  of  certain  realty,  followed  by  a  clause 
revoking  such  devise  as  to  all  but  one  of  the  devisees,  was 
held  to  give  such  devisee  a  fee  in  the  property  devised.'*^  A 
devise  of  the  "proceeds"  of  testator's  real  estate  passes  the 
real  estate  itself  in  fee.'*^  So  a  devise  of  the  "rents  and 
profits"  of  certain  real  estate,  without  any  limitation,  devises 
such  real  estate  itself  in  fee.^^ 

A  question  sometimes  arising  in  determining  whether  a 
fee  simple  passes  or  not  is  whether  such  phrases  as  "to  A 
and  his  children,"  "heirs"  and  the  like,  give  A  a  fee  simple, 
or  give  A  a  life  estate  only,  with  remainder  over  to  the  chil- 
dren. This  question  is  sometimes  stated  as  being  whether 
the  words  "children"  and  the  like  are  words  of  limitation; 
that  is,  are  words  which  are  used  to  show  the  nature 
of  the  estate  given  to  A,  or  are  words  of  purchase ; 
that  is,  words  which  are  used  to  show  that  a  beneficial  interest 
is  devised  to  the  "children." 

Testator's  intention,  which  must,  of  course,  be  deduced  from 
his  entire  will,"*^  determines  the  nature  of  the  estate  devised 
to  the  first  taker,  A.  Unless  modified  by  the  context,  the 
word  "heirs"  in  a  gift  to  A  "his  heirs  or  assigns  forever"  is 
a  word  of  limitation.^^ 

*4  Dewey    v.     Morgan,     18     Pick.  v.    Cannon,    3    Rawle,    489     (Pa.); 

295;  Den  v.  Schenck,  8  X.  J.  L.  29;  Drusadon  v.  Wilde,  63  Pa.  St.  170; 

Morehouse  v.   Cotheal,   22   X.  J.   L.  Bennett  v.  Robinson,  10  "Watts,  348 

430;    Piatt  v.  Sinton,  37  O.  S.  353;  (Pa.)  :  Davis  v.  Williams,  85  Tenn. 

Niles  V.   Gray,   12  0.   S.  320;   Hart  646. 

V.   Wliite,   26  Vt.   260.  4s  Baines    v.    Dixon,    1    Ves.    42 ; 

45  Hill  V.  Brown  (1894),  App.  Baker  v.  Scott,  62  111.  86:  Earl  v. 
Cas.   125.  Rowe,    35    Me.    414;     Traphagen   v. 

46  Marion  v.  Williams,  20  D.  C.  Levy,  45  X.  J.  Eq.  448;  France's 
20;   19  Wash.  L.  Rep.  532.  Estate,    75    Pa.    St.    220.      See    Sec. 

*"!  leberwood  v.  Isherwood,  8  Ohio  491. 

C.   D.   409;    16  Ohio   C.   C.   279,   af-  49  See   Sec.   462. 

firmed  in  57  O.  St.  660,  citing  Bow-  so  Jackson    v.    Alsop.     67     Conn, 

en  V.  Swander,  121  Ind.  175;  Grain  249:  Bryson  v.  Holbrook,  159  Mass. 

V.   Wright,   114  N.  Y.   307;    Garlyle  280. 


LAW     OF     WILLS.  653 

The  context  may  show  that  even  such  a  word  as  "heirs"  is 
used  as  a  word  of  purchase.*  Thus  a  gift  to  A  and  B  for 
life,  the  remainder  "to  go  to  their  heirs  forever,"  shows  that 
the  word  "heirs"  is  used  as  a  word  of  purchase.^^  Where  the 
word  heirs  is  used  as  a  direction  for  a  substitution  as  a  gift 
to  A  and  B  "or  their  heirs,"  it  is  clearly  intended  as  a  word 
of   purchase. ^^' 

In  the  case  of  other  words,  such  as  "children"  the  presump- 
tion is  in  favor  of  their  being  used  as  words  of  purchase.^ ^ 
This  presumption  determines  the  construction  even  in  cases 
which  seem  at  best  ambiguous.  Thus,  a  gift  to  A  "and  her 
children  after  her"  was  held  to  pass  an  estate  to  the  children 
as  purchasers.^^  The  context,  however,  taken  together  with 
the  form  of  dispositive  words  employed,  may  show  testator's 
intention  to  use  the  word  "children"  or  other  similar  word  as 
a  word  of  limitation.  Thus,  in  a  gift  to  A  and  "his  children 
forever,"  "children"  is  used  as  a  word  of  limitation,  practi- 
cally sjTionymous  with  "heirs" ;  ^^  and  "lineage"  in  a  gift  to 
A  and  "her  lineage"  is  similarly  used.^^  The  effect  upon  the 
words  "heir,"  "children"  and  the  like,  produced  by  the  rules 
known  as  the  Rule  in  Shelley's  Case  and  the  rule  in  Wild's 
Case,  are  considered  later.^^ 

§562.     Modern  statutory  rule. 

The  common  law  rule  that  only  a  life  estate  in  real  prop- 
erty would  23ass,  operated  in  many  cases  to  defeat  the  inten- 

*  Campbell   v.   Noble,   _    (Ala.),  52  Gilmor's    Estate,    154    Pa.    St. 

(189G);    19   So.  28;    Leake  v.   Wat-  523. 

son,  60  Conn.  498 ;  Ruggles  v.  Ran-  ss  .Johnson    v.    Webber,    63    Conn, 

dall,  70  Conn.  44;   Kellett  v.  Shep-  501;  Eidgeway  v.  Lanphear,  99  Ind. 

ard,  139  111.  433;  28  N.  E.  751 ;  Fur-  251 ;  Anderson  v.  Anderson,  164  Pa. 

enes  v.  Severtson    (la),   (1898)  ;   71  St.  338;    Williams  v.  Knight,  18  R. 


N.  W.  196;  Lee  v.  Welch,  163  Mass 
312;  Lawrence  v.  Crane,  158  Mass 
392;  O'Rourke  v.  Beard,  151  Mass 
9 ;  Lincoln  v.  Perry,  149  Mass.  368 
Piatt  V.  Mickle,  137  N.  Y.  106 
Gilmor's  Estate,  154  Pa.  St.  523 
51  Leake  v.  Watson,  60  Conn.  498 


I.  333. 

54  Williams    v.    Knight,    18    R.    I. 
333. 

55  Hood  V.  Dawson,  98  Ky.  285. 

56  Lockett  V.  Lockett,  94  Ky.  289. 
5T  See  Sees.   564  and  565  for  the 

Rule    in    Shelley's    Case.      See    Sec. 


So      Campbell      v.      Xoble       \  Wa.) ,       567  for  the  Rule  in  Wild's  Case. 
(1896),   in   So.   28. 


654 


LAW     OF    WILLS. 


tion  of  the  testator,  since  there  is  no  question  that  most  tes- 
tators intend  that  a  gift  of  a  specified  piece  of  property  should 
carry  their  entire  interest  in  it.  This  confusion  is  increased 
by  the  fact  that  a  set  of  words  which  would  carry  absolute 
ownership,  if  applied  to  personal  property  alone,  would  carry 
only  a  life  estate  when  applied  to  real  property  alone.  Ac- 
cordingly, in  most  states,  the  common  law  rule  that  a  devise 
is  presumed  to  be  for  life  only  has  been  abrogated  by  statute, 
and  it  is  commonly  provided  in  analogy  to  the  rule  applying 
to  personal  property  that  a  devise  of  lands  should  be  con- 
strued to  convey  the  entire  estate  of  the  testator  in  such  lands, 
as  far  as  he  can  lawfully  dispose  of  the  same,  unless  it  clearly 
appears  from  the  will  that  the  testator  meant  to  dispose  of 
a  smaller  interest.^^ 

A  devise  to  testator's  wife  providing  that   "she  may  will 


ssBowey  v.  Ardill,  21  Ont.  361; 
Potter  V.  Couch,  141  U.  S.  296; 
Whorton  v.  Morgane,  62  Ala.  201 ; 
White  V.  White,  52  Conn.  518; 
Georgia,  etc.,  Co.  v.  Archer,  87  Ga. 
2.37;  Rickner  v.  Kessler,  138  111. 
636;  Wolfer  v.  Hemmer,  144  111. 
554;  Korf  v.  Gerichs,  145  Ind.  134; 
Eoss  V.  Ross,  135  Ind.  367 ;  Mul- 
vane  v.  Rude,  146  Ind.  476;  46  N. 
E.  659:  Miller  v.  Tilton  (Ky.) 
(1899),  49  S.  W.  967;  Bedford  v. 
Bedford,  99  Ky.  273;  Calmes  v. 
Eubank,  —  Ky.  —  (1897)  ;  40  S. 
W.  669;  Young  v.  Kinkead,  101 
Ky.  252  (1897);  40  S.  W.  776; 
Mudd  V.  Mullican  (Ky.)  (1890), 
12  S.  W.  263;  Fuller  v.  Fuller, 
84  Me.  475;  Kuykendall  v.  De- 
vecman,  78  Md.  537 ;  Backus  v. 
Baltimore  Pres.  Assoc.  77  Md. 
50;  Reid  v.  Walbach,  75  Md.  205; 
Johnston  v.  Safe  Deposit  &  Trust 
Co.,  79  Md.  18 ;  Bentz  v.  Maryland 
Bible  Soc.  86  Md.  102;  Foster  v. 
Smith,  156  Mass.  379;  Simonds  v. 
Simonds,  168  Mass.  144;  46  N.  E. 
421 ;    Joslin  v.  Rhoades,   150  Mass. 


301;  Goodwin  v.  McDonald,  153 
Mass.  481;  Robinson  v.  Finch,  116 
Mich.  180;  Schult  v.  Moll,  132  N. 
Y.  122;  Kinkele  v.  Wilson,  151  N. 
Y.  269 ;  Moushand  v.  Rodetsky,  5  0. 
N.  P.  256;  7  O.  D.  225;  Smith  v. 
Berry,  8  Ohio,  365 ;  Niles  v.  Gray, 
12  0.  S.  320;  Piatt  v.  Sinton,  37 
O.  S.  353 ;  Flickinger  v.  Saum,  40  O. 
S.  591;  Ahl  V.  Bosler,  175  Pa. 
St.  526;  Wilkinson  v.  Chambers, 
181  Pa.  St.  437 ;  Snyder  v.  Baer,  144 
Pa.  St.  278:  13  L.  R.  A.  259:  Fisher 
V.  Wister,  154  Pa.  St.  65:  Hart  v. 
Stoyer,  164  Pa.  St.  523:  Seitz  v. 
Pier,  154  Pa.  St.  467;  Sugden  v. 
McKenna,  147  Pa.  St.  55:  White 
V.  Commonwealth,  110  Pa.  St.  90; 
Harris  v.  Ih^er,  18  R.  I.  540.  1894; 
28  Atl.  971 :  Johnston  v.  .Johnston, 
92  Tenn.  559:  22  L.  R.  A.  179;  May 
V.  San  Antonio,  83  Tex.  502;  Gas- 
kins  V.  Hunton.92  Va.  528  :  23  S.  E. 
885;  Dew  v.  Kuehn,  64  Wis.  293. 
This  statute  has  no  application 
where  the  will  uses  such  technical 
language  as  "heirs  and  assigns." 
Wolfer  V.  Hemmer,  144  111.  554. 


iAW     OF    WILLS.  6^^ 


it,  I  mean  the  old  homestead,  to  any  of  my  children  at  her 
o4n  discretion"  does  not  under  this  statute  show  an  intention 
to  give  less  than  a  fee;««  nor  does  a  devise  to  testator's  son 
with  a  provision  that  at  testator's  death  such  son  ''shall  have 
and  o^^m  in  his  ovm  name"  the  realty  devised.^^  So  where 
testator  devised  to  a  woman  who  was  not  his  lawful  wife,  but 
who  had  lived  with  him  as  his  wife,  one-third  of  his  real 
estate,  describing  it  as  "one-third,  that  is  to  say,  her  dower 
right  of  my  estate,"  it  was  held  that  the  reference  to  dower 
was  not  sufficient  to  show  his  intention  to  pass  only  a  life 
estate,  and  hence  the  devisee  took  a  fee;*'^  nor  does  a  pro- 
vision attempting  to  prevent  the  devisee  from  selling  the  prop- 
erty out  of  the  family,  and  providing  that  on  the  death  of 
the  devisee,  intestate  and  without  direct  heirs,  his  part  should 
pass  to  his  sister,  operate  to  reduce  a  devise  to  a  life  estate.*^=^ 

Where,  in  a  will,  several  devises  are  made  to  certain  de- 
visees "and  their  heirs  forever,"  a  later  devise  to  one,  omit- 
ting the  words  "his  heirs  forever,"  is,  nevertheless,  held  under 
the  statutory  rule  given  to  pass  a  fee  simple ;  ^^  and,  on  the 
other  hand,  a  devise  is  not  reduced  to  a  life  estate  by  the  fact 
that  a  former  devise  to  the  same  devisee  was  for  life  only.*'^ 

§563.     Defeasible  fees. 

Like  other  estates,  a  fee  may  be  given  defeasible  upon  con- 
dition subsequent.  Such  an  estate  is  a  fee  with  all  the  in- 
cidents thereof,  subject  to  be  divested  upon  the  happening  of 
the  condition  subsequent.^^ 

60Ahl  V.  Bosler,  175  Pa.  St.  526.  Daix,    141    Pa.    St.    505;    Pierce   v. 

61  Korf  V.  Gerichs,   145  Ind.    134.  Simmons,  16  R.  I.  680. 

62Shult  V.  Moll,   132  N.  Y.   122;  64  Bedford    v.    Bedford,    99    Ivy. 

so  Dilworthv  V.  Gusky.  131  Pa.  St.  273;   Miller  v.  Carlisle,  -  Ky.  -, 

343;   White  v.   Commonwealth,   110  1890;    14    S.    W.    75. 

p^    p^.    gQ_  65Reid  V.  Walbach,  75  Md.  205. 

63  Fisher"  V.   Wister,    154   Pa.   St.  So    Boston    Safe    Deposit    &    Trust 

65     (in    this    case    apart    from    the  Company    v.    Stich,    61    Kan.    474; 

possible   invalidity  of   the  restraint  59  Pac.   1082. 

on  alienation  no  attempt  was  made  66  Thorington    v.   Thorington,   - 

to  prevent  devisee  from  disposing  of  (Ala.)    -,  1896:   20  So.  407;   Pate 

Mb  property  by  will)       Gillmer   v.  v.  French,   122  Ind.   10:   Malona  v. 


656  LAW     OF     WILLS. 

§564.    The  Rule  in  Shelley's  Case. — Common  Law. 

The  rule  of  law  which  has  become  famous  under  the  name 
of  the  Rule  in  Shelley's  Case,  though  it  was,  no  doubt,  rec- 
ognized and  established  long  before  that  decision,  provided 
in  effect  that  where  an  instrument  gave  a  man  a  freehold 
estate,  and  in  the  same  instrument  the  remainder  was  given 
to  his  "heirs,"  the  first  taker  had  a  fee  simple  if  the  remainder 
was  to  his  heirs  generally,  and  a  fee  -tail  if  the  remainder  was 
to  the  heirs  of  his  body.^^ 

This  rule  was  merely  the  logical  outgrowth  of  certain  fixed 
and  technical  ideas  of  the  common  law.  It  was  well  settled 
in  instruments  other  than  wills  that  no  word  except  "heirs" 
could  create  an  estate  of  inheritance,  and,  conversely,  that  the 
word  "heirs"  created  an  estate  of  inheritance,  in  both  cases 
the  intention  of  grantor  was  ignored.  It  was  inevitable,  then, 
that  a  gift  to  one  for  life  only,  Avith  a  remainder  over  to  his 
heirs,  should  be  held  to  create  a  fee -simple  irrespective  of  the 
intention  of  the  testator.  The  origin  of  the  rnle,  however, 
is  deeper  than  this,  for  eventnally,  after  some  fluctuation  in 
judicial  decision,^^  it  was  held  to  apply  to  wills  as  well  as 
deeds,  though  technical  words  have  always  been  of  less  im- 
perative effect  in  wills  than  in  deeds.  Further,  in  wills  the 
Rule  has  been  applied  to  cases  where  the  technical  word 
"heirs"  was  not  employed ;  as,  for  instance,  where  "dying  with- 
out issue"  was  held  to  import  an  indefinite  failure  of  issue.^** 
The  Rule  in  Shelley's  Case  is  an  example  of  the  tendency 
of  the   law  which   finds   manifestation    in   so   many   different 

Schwing  (Ky.),  39  S.  W.  523;  Har-  Pa.  St.  9;  Doebler's  Appeal,  64  Pa. 
per  V.  Baird  (Ky.),  3.5  S.  W.  638;  St.  9;  Steiner  v.  Kolb,  57  Pa.  St. 
Crozier  v.  Cundall  (Ky.),  35  S.  W.  123;  Sims  v.  Buist,  52  S.  Car.  554. 
546;  Redding  v.  Rice,  171  Pa.  St.  es  rerrin  v.  Blake,  4  Burr.  2579. 
301 ;  Gaskins  v.  Hunton,  92  Va.  "Whensoever  tlie  ancestor  takes  an 
528 ;  23  S.  E.  885.  estate  for  life,  and  after  a  limi- 
07  Shelley's  Case,  1  Rep.  93;  tation  is  made  to  his  right  heirs, 
Doe  V.  Smith,  7  T.  R.  531 ;  Allen  v.  the  right  heirs  shall  not  be  pur- 
Craft,  109  Tnd.  476;  58  Am,  chasers."  Coke  on  Littleton,  Sec. 
Rep.  425;  McFeely  v.  Moore,  19.  To  the  same  effect,  22  (b),  is 
5  Ohio,  464 ;  Anders  v.  Gerhard,  140  Sec.  578,  same  author. 
Pa.    St.    153:    Guthrie's   Appeal,    37           sd  See   Sec.   593. 


LAW    0¥    WILLS.  ^^' 

forms  to  treat  the  first  estate  .as  a  fee  and  the  interests  of 
subsequent  takers,  if  such  interests  ever  accrue,  as  by  descent 
rather  than  by  purchase. 

Various  and  inconsistent  reasons  have  been  suggested  lor  the 
Kule.  It  has  been  declared  that  the  Eule  originated  in  the  desire 
of  the  Law  to  make  the  transfer,  of  hmd  easy  and  free  from 
such  restraints  as  would  necessarily  exist  if  the  owner  held 
a  life  estate  only.  The  Taile,  as  it  first  appears,  is  so  well  set- 
tled that  it  must  date  back  to  a  time  when  the  law  cared  but 
little  for  ease  in  conveying  realty.  It  is  more  probable  that 
tlie  underlying  reason  of  the  Kule  was  that  if  the  ''heirs"  took 
by  descent  the  incidents  of  the  feudal  system,  such  as  ward- 
ship, primer  seisin  and  the  like  attached  to  the  great  benefit 
of  the  superior  lord,  an  advantage  which  he  would  lose  if  the 
"heirs"  took  bv  purchase. 

The  Kule  in  Shelley's  Case  was  not  a  rule  of  construction 
at  common  law.  After  a  vain  effort  to  treat  it  as  merely  a 
rule  of  construction,'^^  the  courts  abandoned  that  view,  and 
treated  it  thenceforth  as  a  rule  of  property.  In  its  subse- 
quent application  and  enforcement  it  had,  as  has  been  re- 
peated again  and  again  by  the  courts,  nothing  to  do  with  the 
discovery  of  the  intention  of  testator.  This  intention  is  to  be 
ascertained  and  determined  by  the  recognized  rules  of  con- 
struction.'^^ .  . 
When,  by  the  exercise  of  these  rules  of  construction,  it  is 
determined  that  testator's  intention  was  to  create  a  life  estate 
in  A,  with  the  remainder  to  the  heirs  of  A,  the  rule  in  Shel- 

70  Perrin  v.  Blake,  4  Burr.  2579.  discovering  the  intention."     List  v. 

■       TiEwin-  V.   Barnes,   156   111.   61;  Rodney,  83  Pa.  St.  483.     So  Sheeley 

Allen   V.    Craft,    109    Ind.    476;    58  v.    Neidhammer,    182    Pa.    St.    163: 

Am    Rep    425:   Seeger  v.  Leakin,  76  King  v^.  Beck,  15  Ohio,  559.     Hence 

Md    500;  Turley  v.  Turley,  11  O.  S.  where  the  word  "heirs"  is  evidently 

173-    Sheeley   v.    Neidhammer,    182  used  as  meaning  "children     and  is 

Pa' St    163;     Sims  v.  Buist,  52   S.  a  word  of  purchase,  a  devise  to  A 

./"      gg^       '  for    life,    and    on   his    death    to   his 

"""It    i's  "  only    after    the    intention  "heirs"   if   any,   if   not,   to   another, 

has  been   discovered   that  the   Rule  was   held    to    give    A   a    life    estate 

in    Shelley's    Case    can   be    applied:  only.     King  v.   Beck,  supra. 
it  can  not  be  used  as  a  means   of 


658  LAW     OF     WILLS. 

ley's  case  then  applies,  whether  testator  intended  that  it  should 
or  not,  as  a  rule  of  property,  and  fixes  A's  estate  as  a  fee.'^^ 
Where  the  Kule  in  Shelley's  Case  is  in  force,  a  devise  to  A 
for  life,  and  at  his  death  "to  be  equally  divided  between 
the  heirs  of  her  body"  gives  A  a  fee.'^^  Where  the  rule  is  not 
in  force  such  a  devise  gives  A  a  life  estate  onlyJ^  And  by 
analogy  this  rule  has  been  applied  to  a  bequest  of  a  leasehold 
estate  to  A  for  life,  and  remainder  to  A's  "bodily  heirs."  "^^ 
The  Eule  in  Shelley's  Case  applies  to  equitable  estates  as  well 
as  to  legalJ^  The  Rule  in  Shelley's  Case  never  had  the  effect 
of  converting  a  fee  tail  into  a  fee  simple.'' 


77 


§565.    The  Rule  in  Shdley's  Case. — Modern  statutes. 

The  tendency  of  modern  law  in  respect  to  the  Rule  in  Shel- 
ley's Case  is  clearly  to  treat  it,  wherever  possible,  as  a  rule  of 
construction,  and  not  a  rule  of  property.  This  change  has 
been  brought  about  in  some  states  by  statutes  which  either 
abolish  the  rule  altogether  or  provide  that  it  shall  not  apply 
to  wills  in  defiance  of  the  clear  intention  of  the  test-ator.'''* 

72  Georgia,  etc.,  Co.  v.  Archer,  87  vided  share  and  share  alike  and  to 
Ga.    237;    Wolfer    v.    Hemmer,    144       their  lawful  heirs"). 

111.   554;   Ewing  v.   Barnes,   156  111.  ^4  De    Vaughn    v.    De    Vaughn,    3 

61;    Hughes  v.   Clark,   Ky.    (1894),  App.    D.    C.    50. 

16  Ky.  L.  Reps.  41 ;  26  S.  W.  187 ;  "  Seeger  v.   Leakin,   76   Md.   500. 

Young  V.  Kinkead,  101  Ky.  252;  40  For  the  application  of  the  Rule  in 

S.    W.    776;     Allen    v.    Craft,    109  Shelley's  Case  to  gifts  of  personal- 

Ind.  476;    58  Am.  Rep.  425;    War-  ty,  see  Sec.  595. 

ner  v.  Sprigg,  62  Md.  14;    Crockett  t 6  Armstrong    v.    Zane,    12    Ohio, 

V.  Robinson,  46  N.  H.  454;    Cham-  287. 

blee  V.   Broughton,   120  N.   C.   170;  77  Pollock    v.    Speidel,    27    O.    S. 

In  re  Allen,  151  N.  Y.  243;  Grimes  86.     This  result,  if  produced  at  all, 

V.   Shirk,   169   Pa.   St.   74;     Sheeley  was  caused  by  special   statute    (see 

V.   Neidhammer,    182    Pa.    St.    163;  Sec.  568).     At  Common  Law,  if  the 

8erfass     v.    Serfass,    190     Pa.    St.  devise  were  to  A  and  his  heirs,  A's 

484 ;     Cowing   v.    Dodge,    19    R.    T.  estate  was  a  fee  simple :  if  to  A  and 

605 ;    35  Atl.  309 ;    Simms  v.  Buist,  the  heirs  of  his  body,  A's  estate  was 

52  S.  C.  554.  a  fee-tail. 

73  Holt  V.  Pickett,  —  Ala.  — ,  7s  King  v.  Evans,  24  Can.  S.  C. 
1896;  20  So.  432;  Silva  v.  Hopkin-  356;  Evans  v.  King,  21  Ont.  App. 
son,  158  111.  386   ("to  be  equally  di-  519;    Healey    v.    Healey,    70    Conn. 

467;    Leake    v.    Watson,    60    Conn. 


LAW    OF    WILLS. 


659 


In  other  states  the  same  result  has  been  obtained  by  judicial 
decision,  the  courts  taking  the  position  that  only  so  much  of 
the  English  law  as  was  applicable  to  the  condition  of  affairs 
in  this  country  was  to  be  adopted  by  our  courts,  and  that,  as 
a  rule  of  property,  the  Kule  in  Shelley's  Case  was  suited  Lo 
a  feudal  system  of  land  ownership,  and  was,  therefore,  un- 
suitable for  our  system,'^^ 

Under  this  rule  a  devise  to  A  for  life,  and  on  his  death  to 
the  "heirs  of  his  body  by  him  begotten"  does  not  give  A  a  fee, 
but  a  life  estate  only,  and  his  heirs  take  by  purchase.^° 

This  statute  has  no  application  where  the  intention  of  testator 
is  in  accord  with  the  Kule  in  Shelley's  Case.^^ 

§566.     Fee  tail. — General  rule. 

A  fee  tail ,  that  is,  an  estate  of  inheritance  descending  on 
the  death  of  the  owner  to  the  heirs  of  his  body,  and  not  to  his 
heirs  generally,  can  be,  of  course,  created  as  well  by  will  as 
by  deed.  The  technical  words  "and  the  heirs  of  his  body," 
are,  of  course,  sufficient  to  pass  an  estate  tail  by  will.^"  These 
technical  words  are  not,  however,  indispensable  to  create  an 
estate-tail,  any  words  which  especially  show  testator's  inten- 
tion to  create  such  an  estate  being  sufficient.     Thus,  a  devise 

498;     Trumbull    v.    Trumbull,     149  Zavitz   v.    Preston,    96    lo.    52;     64 

Mass.    200;    Defreese    v.    Lake,    109  X.  W.  608. 

Mich.  415;  Bird  v.  Gilliam,  121  N.  so  Granger   v.    Granger,    147    Ind. 

C.  326;  Crawford  v.  Wearn,  115  N.  95;   36  L.  R.  A.   186. 

C.   540;   Archer  v.   Brocksehmidt,   5  si  Carter  v.  Reddish,   32   0.   S.   1. 

Ohio  N.  P.  349 ;  Sanborn  v.  Sanborn,  In  this  case   testator   devised  his 

62  N.  H.  631 ;     Gilpin  v.  Williams,  real    estate    to    certain    named    chil- 

25  O.    S.    283;    Bunnell    v.    Evans,  dren  "to  have  and  to  hold  the  same 

26  O.  S.  409;  Bucklin  v.  Creighton,  during  their  natural  lives  and  to 
18  R.  I.  325;  Wood  v.  Wood,  45  their  heirs."  Xo  further  provision 
S.  Car.  590;  23  S.  E.  950  (to  A  was  made  of  the  remainder  after  the 
for  life  and  at  her  death  "to  such  death  of  the  children  named  as 
issue  of  her  body"  as  shall  then  beneficiaries;  and  it  was  accord- 
be   living).  iiigly  held  that  they  took  a  fee,  even 

79  De  Vaughn  v.  Hutchinson,   165  under    the    statute. 
U.  S.  566;  Granger  v.  Granger,  147  82  Pearsol   v.    Maxwell,     76     Fed. 

Ind.  95;  36  L.  R.  A.  186;  Westcott  428,  affirming  68  Fed.  513;  Ralston 

V.   Binford,   104   lo.   645:     Kiene  v.  v.   Truesdell,    178   Pa.    St.   429;    Du 

Ginehle,  85  lo.  312 :  52  X.  W.  232 ;  Pont  v.  Du  Bose,  52  S.  C.  244. 


(5(50  LAW     OF     WILLS. 

to  X,  his  heirs  and  assigns,  providing  that,  if  he  should  die 
leaving  no  heirs,  it  should  go  to  another,  is  held  to  create  au 
estate-tail.^^  A  devise  to  A  ''and  her  issue  and  their  heirs" 
pass  an  estate-tail  to  A.^^  So  where  words  are  used  showing  an 
intention  to  devise  an  estate  of  inheritance,  but  limited  by 
o-ift  over  in  case  of  dving  without  issue,  and  the  phrase 
"without  issue"  is  so  used  as  to  import  an  indefinite  failure 
of  issue,  this  was  held  to  pass  an  estate-tail.^^  So,  a  gift  to 
A  and  his  "issue,"  or  words  of  similar  import,  has  uniformly 
been  held  to  pass  an  estate-tail,  where  the  context  does  not 
show  an  effective  intent  to  give  A  a  life  estate  only.^*^  The 
law,  however,  prefers  to  construe  a  will  so  as  to  create  an  estate 
in  fee  instead  of  an  estate  in  fee-tail,  where  the  language  used 
in  the  will  is  ambiguous.^^ 


§567.     The  Rule  in  Wild's  Case. 

An  old  and  well-recognized  rule,  which  takes  its  name  from 
one  of  the  early  English  cases  in  which  it  w^as  recognized  and 
applied  (Wild's  Case,  6  Kep.  17),  is  that  a  devise  to  A  and 
his  children,  A  at  that  time  having  no  children,  is  equivalent 
in  effect  to  a  devise  to  A  and  to  the  heirs  of  his  body.^*  Such 
a  form  of  devise,  accordingly,  created  an  estate-tail. 

83Cliesebro   v.    Palmer,    68    Conn.  Hawkins,    18   R.   I.   573;    Holden  v. 

207.  Wells,  18  R.  I.  802. 

84Harkness  v.  Corning,  24  O.   S.  se  Slater    v.    Dangerfield,    15    M. 

416,  &   W.   263;    Hockley  v.   Mawbry,    1 

85  Barber   v.    Pittsburg,    etc.,   Ry.  Ves.    Jr.    143;     O'Byrne   v.    Feeley, 

Co.   166  U.  S.  83;   Barber  v.  Pitts-  61  Ga.  77;  Jackson  v.  Jackson,  153 

burg,    etc.,    Ry.    Co.    69    Fed.    501;  Mass.    374;    King    v.    Savage,    121 

St.    John   V.   Dann,    66    Conn.    402;  Mass.    303:    Patterson    v.    Madden, 

.  Turrill  v.   jSTortlirop,   51    Conn.   33;  54  N.  J.  Eq.  714;  Wistar  v.  Scott, 

Gonzales    v.    Barton,    45    Ind.    295;  105  Pa.  St.  200. 

Fisk  V.  Keene,  35  Me.  349;   Simons  st  Collins    v.    Collins,    40    0.    S. 

V.  Simons,  112  Mass.  157;  Brown  v.  353. 

Hospital,    155    Mass.    323;    Patter-  ss  Tate    v.    Clark,    1    Beav.    100; 

son  V.  Madden,  54  N.  J.  714;  33  Atl.  Hood  v.  Dawson,  98  Ky.  285;  Bentz 

51;   Lawrence  v.  Lawrence,  105  Pa.  v.  Maryland  Bible  Soc.  80  Md.  102: 

St.    335;     Sheeley    v.    Neidhammer,  Crawford  v.  Forest  Oil  Co.  77  Fed. 

182  Pa.  St.  163;  Palethorp  v.  Pale-  534;   Silliman  v.  Whitaker,   119  N. 

thorp,    194    Pa.    St.    408:    Bailey   v.  C.  89:     Cote  v.  Von   Bonnhorst.  41 


LAW    OF    WILLS. 


661 


§568.     Modern  statutory  rules Fee-tail  changed  to  fee-simple. 

The  policy  of  modern  legislation,  being  opposed  to  restraint 
upon  alienation  generally,**^  has  in  most  states  greatly  changed 
the  nature  of  an  estate-tail,  or,  to  speak  more  exactly,  has  pro- 
vided that  words,  which  at  common  law  would  create  an  es- 
tate-tail, would  henceforth  create  other  and  different  estates 
therein  specified.  The  statutes  are  not  unanimous  as  to  what 
estate  these  words  shall  create,  however.  In  some  states  the 
first  taker  takes  a  fee-simple  which  he  may  bar  by  a  deed. 
Under  these  statutes  a  deed  by  the  first  taker  conveying  the 
property  has  practically  the  effect  of  a  common  recovery  at 
the  common  law.^*^ 

§569.     Modern    statutory   rules. — Fee-tail   in    first    taker.     Fee- 
simple  in  remainderman. 

In  other  states  the  first  taker  takes  a  life  estate  only,  with 
a  remainder  in  fee-simple  to  the  person  who  would  take  at  his 
decease. ^^  In  other  states  the  first  taker  takes  an  estate-tail ; 
that  is,  an  estate  of  inheritance  subject  to  dower  and  curtesy, 
but  an  estate  whose  disposition  he  can  not  control  beyond  his 
own  life  by  deed  or  will,^^  with  remainder  in  fee-simple  to 
those  who  would  take  under  the  gift  at  his  death. 

§570.     Life  estates  in  realty. — Created  by  express  words. 

Under  common  law  a  devise  was  prima  facie  a  devise  for 
the  life  of  the  devisee,  unless  a  contrary  intention  appeared 
in  the  will.^^      This  rule  has  been  changed  in  most  jurisdic- 

Pa.  St.  243;   Blair  v.  Miller,  30  W.  fi  St.    John    v.    Dann,    GG    Conn. 

NT.   C.   486.  401;    Welliver  v.  Jones,  16G  111.  80; 

89  See   Sec.  — .  Wood  v.  Kice,  103  Mo.  329  ;  Kelso's 

90  Slayton  v.  Blount,  93  Ala.  575;  Estate,  69  Vt.  272;  37  Atl.  747. 
Granger  v.  Granger,  147  Ind.  95;  92  Pollock  v.  Speidel,  17  0.  S. 
36  L.  R.  A.  18G;  Leathers  v.  Gray,  439;  Harl^ness  v.  Corning,  'Zi  O. 
101  N.  Car.  162;  Silliman  v.  Whit-  S.  416;  Pollock  v.  Speidel,  27  O.  S. 
akcr,  119  N.  Car.  89;  Bodine  V.  Ar-  8u:  Phillips  v.  Herron,  55  0.  S. 
thur,  91  Ky.  53:    34  Am.  St.  Rep.  478.      See   Sec.   560. 

162;    Robinson's  Estate,  149  Pa.  St.  93  McAleer   v.    Schneider,    2    App. 

418;     Sheeley   v.    Neidhammer,    182       D.  C.  461. 
Pa  St.  163. 


662  LAW    OF    WILLS. 

tions,  and  a  devise  is  now  prima  facie  a  devise  of  the  entire 
interest  of  testator  in  the  property  devised,  unless  a  contrary 
intention  appears  in  the  will.^^  This  contrary  intention  may 
be  manifested  in  many  different  ways.  A  devise  to  one  to 
hold  '^'during  his  life"  or  "for  the  full  term  of  his  natural 
life/'  or  by  any  similar  expression,  will  pass  a  life  estate 
only,  unless  modified  by  some  other  provision  of  the  will.^° 
So  a  devise  to  one  "for  his  life  and  the  life  of  his  heir"  gives 
him  a  life  estate,  followed  by  an  estate  to  the  person  who 
should  be  determined  to  be  his  heir  at  the  time  of  his  death.''*' 
So  a  devise  to  A  "and  to  his  children"  has  been  held  to  be  an 
estate  to  A  for  life,  remainder  to  his  children.^'^  So,  where 
the  Kule  in  Shelley's  Case  is  not  in  force,  a  life  estate  is  cre- 
ated by  a  gift  to  one  for  life,  with  remainder  to  his  heirs,^^ 
An  estate  may  also  be  created  to  last  during  the  lifetime  of 
some  one  other  than  the  tenant.  In  wills  this  estate  jmr 
auter  vie,  is  usually  created  by  a  gift  to  members  of  a  class 
for  the  life  of  one  member.^^  Such  estate  may  be  expressly 
created  by  a  gift  to  A  for  the  life  of  B.^°*^ 

Where  testator's  intention  to  pass  a  freehold  is  clear  from 
the  context,  the  use  of  the  word  "loan"  instead  of  "give"  or 


94  See  Sec.  562.  257 ;    Howe  v.   Gregg,  52   S.   C.   88  ; 

9=5  Smith   V.   Runnels,    97    lo.    55 ;  Harrison  v.  Foote,  9  Tex.  Civ.  App. 

«5    N.    W.    1002;    Stivers    v.    Gard-  576. 

ner,  88   lo.  307;   Everett  v.Croskrey,  ^^  In  re  Amos   (1891),  3  Ch.  150. 

02  lo.  333 ;    Perry  v.  Bowman,  151  97  Crawford  v.  Forest  Oil  Co.  77 

HI.    25;    McGraw   v.    Minor    (Ky.),  Fed.  534. 

15  S.  W.  6;    McConnell  v.  Wilcox,  98  King  v.   Evans,   24   Can.   S.   C. 

—  Ky.  —    (1890);     12   S.  W.  409:  R.    356;    Rosenau    v.    Childers,    111 

Louisville    Trust    Co.    v.    Todd,    —  Ala.    214;    20    So.    95;     Thomas   v. 

Ky.   — :    22    S.    W.    438;    Young   v.  Miller,     101      111.     60;       Zavitz     v. 

Morehead,    94     Ky.      608;      Linde-  Preston,  96  lo.  52 ;    64  N.  W.  668 : 

nieier   v.    Lindemeier,    91    Ky.    264;  Rice  v.  Moyer,  97  lo.  96;  66  N.  W. 

Cousino   V.   Cousino,   86   Mich.    323;  94;     Defreese    v.    Lake,     109    Mich. 

Sillcocks  V.   Sillcocks,   50  N.  J.  Eq.  415;    Wood    v.    Wood,    45    S.    Car. 

25;  Brook's  Will   (N.  Car.),  (1809^  590;  23  S.  E.  950. 

34  S.  E.  265;  Hull  v.  Hull,  16  Ohio  99  Madison    v.     Larmon,    170    111. 

C.   C.   App.   688;    9   Ohio  C.  D.   19;  65;     Coraly's    Estate,    136    Pa.    St. 

SwartK   V.   Gehring,    11    Ohio   C.   C.  153. 

625;  High's  P:state,  136  Pa.  St.  222,  io«  Stevenson    v.    Stevenson,    91 

236;    Reynold's   Estate,    175   Pa.   St.  Ky.  50. 


LAW    OF    WILLS. 


663 


"devise"  does  not  cut  the  estate  given  to  any  less  estate.^  °^ 
A  gift  to  A  expressly  for  life  is  not  cut  do^vn  to  an  estate  for 
the  life  of  another  by  a  direction  to  the  life  tenant  to  support 
such  other.-^"" 

§571.     Estates  for  widowhood. 

A  life  estate  may  also  be  created  by  a  devise  to  the  widow 
of  testator  "during  her  widowhood"  or  "during  the  time  she 
lives  a  widow"  or  some  similar  expression.^ °^  The  interest 
conveyed  by  such  a  devise  is  a  conditional  one,  since  restraint 
upon  second  marriages,  are  enforced,  and  terminates  either 
with  the  death  or  remarriage  of  the  devisee.^*^^  A  similar 
estate  is  created  by  a  devise  to  a  husband  with  a  devise  over 
upon  his  death  or  remarriage.-^  °^ 

§572.     Life  estate  created  by  gifts  over. 

A  life  estate  may  also  be  created  by  a  gift  to  the  first  taker 
with  remainder  over  to  others  upon  his  death,  where  such  will 
does  not  clearly  bestow  a  fee  in  the  first.  As  the  persons  to 
whom  the  remainder  over  is  given  are  usually  the  heirs  or 
issue  of  the  first  tenant,  the  rule  must  be  modified  in  such 
cases  by  limiting  it  to  jurisdictions  where  the  Rule  in  Shel- 
ley's Case  is  not  in  force,  or  to  such  states  where  the  Rule  in 
Shelley's  Case  is  in  force  as  have  treated  a  failure  of  issue 
as  definite  rather  than  indefinite.^*'*^ 

101  Woodley  v.  Findlay,  9  Ala.  509 ;  Nash  v.  Simpson,  78  Me.  142 
716;  Ewing  v.  Standefer,  18  Ala.  Beddaid  v.  Harrington,  124  N.  C 
400;  Lloyd  v.  Rambo,  35  Ala.  709;  51;  Cooper  v.  Cooper,  56  N.  J.  Eq 
Holt  V.  Pickett,  111  Ala.  362;  Britt  48;  Miller  v.  Gilbert,  144  N.  Y 
V.  Rawlings,  87  Ga.  146;  Robert-  G8 ;  Brotznian's  App.  133  Pa.  St 
son  V.  Hardy,  —  Va.  — ,  1896;  478;  Cooper  v.  Pogue,  92  Pa.  St 
23  S.  E.  766.  254. 

102  Bigelow  V.  Barr,  4  Ohio,  358.  lo*  See    cases    cited    in    preceding 
if>3  Evan's    App.    51    Conn.    435;       note.     See   Sec.   681. 

Rose  V.  Hale,  185  111.  378 ;   Siddons  los  Stivers     v.    Gardner,    88     lo. 

V.    Cockrell,    131    111.    653;    Roberts  307. 

V.   Roberts,    140   111.    345;    29   N.   E.  i"6  Terrell  v.  Reeves,  103  Ala.  264 ; 

886;  Levengood  v.  Hoople,  124  Ind.  Rosenau  v.  Childers,   111  Ala.  214; 

27;     Fuller    v.    Wilbur,    170    Mass.  Healey    v.    Eastiake,    152    111.    424; 

506;  Mansfield  v.  Mansfield,  75  Me.  Turner  v.  Wilson,  55  111.  App.  543; 


664  LAW     OF     WILLS. 

jSIo  set  rule  can  be  laid  down  for  determining  whether  tes- 
tator's intention,  in  making  a  devise  over  after  the  death  of 
the  devisee  to  whom  an  estate  in  fee  has  already  been  given, 
is  to  restrict  the  interest  of  the  first  taker  to  a  life  estate  or 
to  create  a  fee  which  lacks  certain  necessary  inci- 
dents. This  intention  must  be  gathered  from  the  whole  will. 
It  seems  well  settled,  however,  that  a  devise  of  any  "unex- 
pended part,"  or  a  devise  of  "whatever  is  left,"  shows  that  tes- 
tator intended  the  first  taker  to  have  a  fee,  since  power  of 
absolute  alienation  is  recognized,  although  not  exj^ressly  con- 
ferred.io^ 

§573.     Life  estate  created  by  directions  to  support,  etc. 

In  cases  of  doubt  the  purpose  and  object  of  testator  in  mak- 
ing a  devise  may  be  of  importance,  although,  of  course,  where 
an  intention  is  clearly  to  give  a  certain  estate,  the  court  will 
not  ignore  the  will  and  create  a  different  estate  merely  be- 
cause the  court  may  think  some  other  disposition  better  suited 
to  the  accomplishment  of  the  purpose  of  testator  than  the  one 
actually  made.^^^  Accordingly,  where  an  estate  is  given  to 
one  in  such  terms  as  to  make  its  duration  doubtful,  a  pro- 
vision showing  that  the  devise  was  intended  for  the  support 

Eubank  v.  Smiley,130  Ind.393    ("to  362;  Anderson  v.  Anderson,  164  Pa. 

do    with    and    dispose    of    after    my  St.   338;     Peirce    v.    Hubbard,     152 

decease  as  slie  thinks  best";   at  her  Pa.  St.  18;  Nes  v.  Kamsey,  155  Pa. 

death  the  real  estate  to  be  "equal-  St.  628;    O'Eourke  v.  Sherwin,  156 

]y  divided  among  my  heirs")  ;  Wil-  Pa.  St.  285;    Gadsden  v.  Desportes, 

liams    V.    Dvmcan,    —    Ky.    — ;    17  39  S.  C.  131 ;  Dwight  v.  Eastman,  62 

S.   W.   330;    Adams  v.   Adams,   Ky.  Vt.   398;   Robinson  v.  Robinson,  89 

(1898);   47  S.  W.  335;   Hopkins  v.  Va.  910;   Allen  v.  Boomer,  82  Wis, 

Keazer,    89    Me.     347;     Rodney    v.  364;    Jones  v.  Jones,  66  Wis.  310; 

Landau,  104  Mo.  251 ;  Hull  v.  Hull,  Littlewoad's    Will,    96    Wis.    608 ; 

16    Ohio    C.    C.    App.    688;    9    Ohio  71  X.  W.  1047. 

C.  D.  19;  Wood  v.  Wood,  45  S.  Car.  io7  Howard   v.   Carusi,   109   U.   S. 

590;  Downes  v.  Long,  79  Md.  382;  725;   Burleigh  v.  Clough,  52  X.  H. 

Eldred    v.    Shaw,    112    Mich.    237;  267;   Bentz  v.  Fabian,  54  X.  J.  Eq. 

Schorr    v.    Carter,     120    Mo.    409:  615;     Wolfer   v.    Hammer,    114    111. 

Dimning     v.    Burden,    114     N.    C.  554. 

33;    Lewis    v.    Bryce,    187    Pa.    St.  los  See   Sec.   460. 


LAW     OF     WILLS.  665 

of  the  beneficiary   during  liig   life   may   determine   that   the 
estate  given  was  only  a  life  interest.^ ^^ 

On  the  other  hand,  a  gift  to  testator's  widow,  with  power 
to  manage  the  jiroperty  so  as  to  educate  the  children  during 
her  lifetime  or  widowhood,  gives  her  an  estate  for  life  or 
widowhood,  without  reference  -to  the  time  at  which  the  chil- 
dren come  of  age.^^^  So,  where  testator  provided  in  his  will 
that  certain  land  should  he  "loaned"  to  his  wife  in  lieu  of 
dower,  it  was  held  that  such  expression  clearly  showed  that  he 
intended  her  to  have  only  a  life  interest.-^ ^^  The  intention 
to  create  a  life  estate  only  is  especially  clear  where  there  is 
a  gift  over  to  another  upon  the  death  of  the  person  for  whose 
support  the  property  is  said  in  the  wdll  to  be  devised.  Such 
form  of  devise  is  always  held  to  pass  a  life  estate  only.-^^^ 

§574.     Language  restricting  a  fee  to  a  life  estate. 

Since  a  will  is  to  be  construed  as  a  whole,  and  effect  given 
to  every  part  of  it  where  possible,  and  in  case  of  irreconcilable 
conflict  the  last  clause  is  to  prevail,  it  follows  that  it  is  pos- 
sible, by  subsequent  words  in  a  will,  to  reduce  a  fee  previously 
given  to  a  life  estate.^  ^^  Thus  a  provision  "I  devise  and  be- 
queath to  my  wife  certain  property ;  at  her  death  it  goes 
to  her  daughter"  shows  that  testator's  wife  is  to  receive  only  a 
life-estate.^  ^^       So   a  gift  to  A,   apparently  in   fee,   followed 

109  Fields  v.  Bush,  94  Ga.  664;  rie's  App.  132  Pa.  St.  157;  Pres. 
Perkins  v.  Stearns,  163  Mass.  247 ;  Board  of  Foi-eign  Missions  v.  Gulp, 
Smathers  v.  Moody,  112  N.  C.  791;  151  Pa.  St.  467;  Taylor  v.  Bell, 
Hays  V.  Davis,  105  N.  C.  482;  Tay-  158  Pa.  St.  651;  Patton  v.  Church, 
lor  V.  Bell,  158  Pa.  St.  651 ;  Patton  168   Pa.   St.   321. 

V.    Church,    168    Pa.    St.    321     ("for  us  Imas  v.   Neidt,   101     lo.    348; 

a  family  home  during  widowhood").  Wolfer  v.  Hemmer,  144  111.  554;  28 

110  Fields  v.  Bush,  94  Ga.  664.  N.  E.  806;  Lomax  v.  Shinn,  162 
iiiBritt  V.  Rawlings,  87  Ga.  146.  111.  124;  Sheet's  Estate,  52  Pa.  St. 
112  Weaver  v.  Weaver,  —  Ky.  —  257 ;    Pennock's   Estate,   20   Pa.    St. 

(1892);    IS    S.    W.    228;    Brand   v.  268;    Gaskins    v.    Hunton,    92    Va. 

Rhodes,   —   Ky.    —    (1895);    30    S.  528;     Stark  V.  Lipscomb,  29  Gratt. 

W.    597;     Frank    v.    Unz,    91    Ky.  (Va.)    3^;    Haymond   v.   Jones,   33 

621;  Ladd  v.  Chase,  155  Mass.  417;  Gratt.     (Va.),     317. 

Rose  V.  Eaton,  77  Mich.  247 ;  Barnes  n*  Rice  v.  Moyer,  97   lo.   96;    66 

V.   Marshall,  102  Mich.  248;  Smath-  N.   W.   94. 

ers  V.  Moody,  112  N.  C.  791;  Mazu- 


666  LAW    OF    WILLS. 

by  a  gift  to  A  which  can  apply  only  to  the  same  property,  of 
such  property  for  life,  cuts  A's  interest  down  to  a  life  estate.-^ ^^ 

A  gift  to  A  of  certain  projDerty  "in  fee-simple  forever,  that 
is  to  say  that  A  shall  have  all  the  benefits  therefrom  until  the 
expiration  of  her  life,  at  which  time  my  son  Anton  shall  be 
the  only  heir  of  real  and  personal  estate  what  may  be  left," 
was  held  to  cut  down  the  fee  to  a  life  estate.-^  ^^ 

An  estate  in  fee  given  to  testator's  widow  is  reduced  to  a 
life  estate  with  a  possibility  of  a  merger  in  a  fee,  in  case  the  wi- 
dow survives  her  son,  by  a  subsequent  provision  that  upon  the 
death  of  either  the  son  or  the  widow  the  survivor  should  have  the 
entire  property.-^ ^" 

However,  language  which  cuts  down  an  estate  in  fee  to  a 
less  estate  must  be  as  clear  and  decisive  as  the  words  by  which 
the  estate  in  fee  was  given  in  the  first  'instance.-^  •'^  Thus  a  de- 
vise in  fee  is  not  reduced  to  a  life  estate  by  a  subsequent  pro- 
vision that  only  a  life  estate  shall  pass  in  "my  personal  estate 
"and  whatever  belonging  to  m©  at  my  death  whatsoever  and 
wheresoever  of  what  nature,  kind  and  quality,  soever  may 
be;"  ^^^  nor  is  a  fee  cut  down  to  a  life  estate  by  a  provision 
that  the  devisee  shall  have  "the  sole  control"  of  the  property  de- 
vised during  his  lifetime.-^ ^"^  And  a  devise  to  one,  and  in  the 
event  of  her  death  to  other  named  devisees,  was  held  to  pass 
a  fee  and  not  a  life  estate  where  the  evidence  disclosed  that 
the  first  beneficiary  was  at  the  point  of  death  at  the  time  the 
will  was  exe<3uted.     In  such  a  case  the  devise  over  was  held  to 


iisLomax  v.  Shinn,   162  111.   124.  Bull.    313:    Hoeveler   v.   Hume,    138 

116  Siegw-ald  v.  Sieg^vald,  37  111.  Pa.  St.  442  ;  Keating  v.  McAdoo,  180 
430.  Pa.  St.  5;   Oyster  v.  Orris,  191  Pa. 

117  Littlewood's  Will,  96  Wis.  St.  606;  Kimball's  Will,  20  R.  I. 
608;  Gaskins  v.  Hunton,  92  Va.  528.  619;  20  R.  I.   (Part  3),  224;  Teese 

118  Pratt  V.  Shepard,  etc.,  Hospit-  v.  Kyle,  96  Va.  387;  Stowell  v. 
al,  88  Md.  610;  Jones  v  Bacon,  68  Hastings,  59  Vt.  494;  59  Am.  Rep. 
Me.  34;  28  Am.  Rep.  1;  Gifford  v.  748;  Haymond  v.  Jones,  33  Gratt. 
Choate,    100    Mass.    343;    Carter   v.  (Va.)     317. 

Gray    (N.    ,T.),    43   Atl.    711;    Ban-  na  Banzer   v.   Banzer     156   N.   Y. 

zer  V.   Banzer,   156  N.  Y.  429;    Col-  429. 

lins  V.   Collins,  40  O.   S.*353;    Pen-  120  Snyder    v.    Baer,    144    Pa.    St. 

dleton    V.    Bowler,   27    Weekly   Law  278;    13  L.  R.  A.  359. 


> 


667 

X.AW    OF    WILLS. 


be  conditioned  npon  tl.e  deatli  of  the  beneficiary  during  the 

lifetime  of  testator.  "  .•         „. 

Where  testator  devises  realty  to  one,  with  suggestions  a. 
to  its  ultimate  disposition  by  devisee,  which  do  not  amount 
to  1  precatory  trust,  the  devisee  takes   a   fee-simple  So 

:;::L  L  certlm  real  estate  devised  to  A  "shall>e  for 
their  use  and  support  during  tlieir  natural  lives  -^^  '^ - 
death  shall  descend  to  their  children,  if  any  if  no  children, 
Zl  to  descend  to  the  brothers  and  sisters  and  their  children, 

•  J?        1 23 

was  held  to  give  a  tee.  .  .  , 

So  a  -ift  to  A  "in  fee,"  followed  by  a  provision  that  it  A 
should  die  without  issue  "the  estate  ....  above  given 
for  life  shall  go  to  such  persons  as  it  would  go  by  law  if  they 
had  an  estate  in  fee  and  should  die  intestate,'  gives  A  a  fee 
Where  the  words  are  mandatory  and  not  precatory,  however,  the 
estate  given  may  be  cut  down  to  a  life  estate.  - 

8575.     Effect  of  conferring  power  to  dispose  of  property. 

o 

It  not  infrequently  happens  that  testator  confers  either 
special  or  limited  powers  of  disposing  of  property  upon  one 
who  has  an  estate  in  such  property.  Some  interesting  ques- 
tions are  presented  as  to  what  effect  conferring  such  pow 
has  upon  duration  of  the  estate  given  by  the  will.  Where 
the  estate  given  by  the  will  is  clearly  a  f-'/fis  esta  e  is  no 
cut  down  to  a  life  estate  or  any  less  interest  by  the  fact  that 

.,.G,ee„-s    Estate,    140    Pa.    St.  -  Potts    v.    ^^J'^nl't-Kr  -, 

513.     So  Hilger  v.  Uolle,         r^y.       > 

''';..  Rogers    v.    Winldepleck,     14.3       1896;    37  S.  W.  492. 

"=  .  i     +^    A  124  Briscoe  v.  Briscoe,  —  Ky.  — , 

Ind.  3-3    (.  gift  of  property  to  A  "nsc 

"subject  to  a  division  among  afor  -       1**;?;  =^\°-  ™o,b,,,„_  83  Md.  198 
said  heirs,  at  her  death,  ,n  accord-         ;-^^''""  ^  ^  ^  ^  ^i„,. 

T  r';^''''^?otr  "terd  r;;eT        ionntat^e^-r,!  arran'.e  his  af- 
?;,t      'C>.r,         Metr,ade.       fairs    that    at    his  .^eath    whatever 

between  certain  persons).     Bellas's      O.  S.  4bl. 
Estate,  176  Pa.  St.  122 :  Heck's  Es- 
tate, no  Pa.  St.  232. 


668  LAW    OF    WILLS. 

testator,  out  of  abundant  caution,  has  thought  it  necessary  to 
give  specific  power  of  disposition  to  the  tenant.-^  ^^ 

And  where  the  testator's  intention  to  give  a  fee  clearly 
appears  upon  the  will,  his  attempt  to  direct  the  course  of 
descent  upon  the  death  of  the  first  taker  is  repugnant  to  the 
nature  of  the  estate  and  void.^^^ 

Where  a  will  is  so  drawn  as  to  leave  it  doubtful  whether  a  life 
estate  or  a  fee  simple  was  intended  to  be  conveyed,  the  addition 
of  powers  of  alienation  and  disposition  of  the  property  devised 
may  be  very  useful  in  determining  testator's  intent.  It  is  not 
safe,  however,  to  lay  down  the  general  rule  that  the  addition  of 
these  powers  is  always  conclusive  that  the  estate  created  is  a  fee. 
If  the  will  shows  that  the  testator,  in  enumerating  the  powers, 
was  describing  the  estate,  and  if  the  powers  thus  enumerated 
constitute  substantially  the  incidents  'of  absolute  ownership, 
the  estate  will  be  held  to  be  a  fee.^^*  So  a  gift  of  an  am- 
biguous estate,  coupled  with  a  power  of  absolute  disposal, 
passes  the  fee.^^^ 

On  the  other  hand,  if  the  will  is  drawn  so  as  to  show  that 
testator  intended,  in  his  enumeration  of  powers,  to  add  to  the 


126  Xew  Eng.  Mortgage  Security  bury,  144  Mass.  542;  Pratt  v.  Doug- 
Co.  V.  Buice,  98  Ga.  795;  Veeder  v.  lass,  38  N.  J.  Eq.  516;  Rodenfels 
Meader.  157  Mass.  413;  Forbes  v.  v.  Schumann,  45  N.  J.  Eq.  383;  Mc- 
Darling,  94  Mich.  621;  Cressler's  Clellaii  v.  Larchar,  45  N.  J.  Eq.  17; 
Estate,  161  Pa.  St.  427;  Good  v,  Dodson  v.  Sevans,  52  N.  J.- Eq.  611 ; 
Fichthorn,  144  Pa.  St.  287 ;  Brad-  Contine  v  Brown,  17  Vr.  599 ;  Bor- 
ley  V.  Carnes,  94  Tenn.  27.  den  v.  Downey,  6  Vr.  74:  1  Vr.  460; 

127  Bradley  v.  Carnes,  94  Tenn.  Dutch  Church  v.  Snock,  Sax.  148 ; 
27.  See  Sec.  576:  Such  as  was  Annin  v.  Vandoren,  14  N.  J.  Eq. 
an  attempt  by  testator  to  compel  135;  Sharp  v.  Humphreys,  1  Harr. 
the  devisee  in  fee,  to  make  a  spe-  25 ;  Armstrong  v.  Kent,  1  Zab.  509 ; 
cific  disposition  of  the  property  de-  2  Hal.  Ch.  559. 

vised,  by  such  devisee's  will.     Good  129  Snyder   v.    Baer,    144    Pa.    St. 

V.  Fichthorn,  144  Pa.  St.  287.  278;    13  L.  R.  A.  359    (a  gift  to  A 

128  Brandt    v.    Virginia    Coal    Co.  with  "power  to  dispose  of  the  same 
93  U.   S.   326:    Elyton   Land   Co.   v.  by   bequeath,    or    as    she   directs"): 
McElrath,  53  Fed.  763;    Peckham  v.  Kieffel  v.  Keppler,  173  Pa.  St.  181. 
Lego,  57  Conn.  553;  Glover  v.  Still- 
son,  56  Conn.  316;    Welsh  v.  Wood- 


LAW     OF    WILLS. 


669 


estate  already  devised,  and  if  the  exercise  of  all  these  powers 
is  necessary  to  absolute  ownership,  it  will  then  be  held  that  he 
did  not  intend  to  pass  a  fee  simple.^ ^° 


§576.     Gift  of  life  estate  with  power  to  dispose  of  remainder. — 
When  held  life  estate. 

If  testator  devises  an  estate  which  is  clearly  a  life  estate, 
and  adds  to  such  devise  limited  powers  of  disposition  and 
alienation,  the  authorities  are  nearly  unanimous  in  holding 
that  such  a  power  of  disposition  does  not  enlarge  the  life  es- 
tate into  a  fee,  but  that  the  estate  created  is  exactly  what  it 
purports  to  be;  that  is  to  say,  a  life  interest  with  power  to 
testator  under  certain  conditions  and  in  certain  methods  to 
dispose  of  the  fee.^^^ 

The  limitation  upon  the  power  of  disposition,  in  most  of 
the  cases  cited  in  the  preceding  note,  consists  in  a  restriction 


130  rellizzaro  v.  Reppert,  83  la. 
497;  Robeson  v.  Sliotwell,  55  N.  J. 
Eq.  318;  Stableton  v.  Ellison,  21 
O.  S.  .527. 

131  Mansfield  v.  Shelton,  G7  Conn. 
390;  Hull  V.  Holloway,  58  Conn. 
210;  Peckham  v.  Lego,  57  Conn. 
553;  7  L.  R.  A.  419;  Wetter  v. 
Walker,  62  Ga.  142;  Rusk  v.  Zuck, 
147  Ind.  388;  Rowley  v.  Sanns.  141 
Ind.  179;  Proctor's  Estate,  95  To. 
172;  Stumpenliousen's  Estate,  108 
To.  555 ;  Jones  v.  Jones,  93  Ky.  532 ; 
McCallister  v.  Bethel  (Ky.),  29  S. 
W.  745;  16  Ky.  L.  Rep.  774;  Mills 
V.  Bailey,  88  Md.  320;  Collins  v. 
Wickwire,  162  Mass.  143;  Chase  v. 
Ladd,  153  Mass.  126;  Glover  v.  Reid. 
80  Mich.  228;  Gadd  v.  Stoner,  113 
Mich.  689;  Jones  v.  Deming,  91 
Mich.  481;  Greffet  v.  Willman,  114 
Mo.  106;  Jackson  v.  Robins,  16 
Johns  (K  Y.),  537  (one  of  the 
leading  American  cases  on  this  sub- 
ject) ;  McClure's  Will,  136  K  Y. 
238;    Swarthout  v.    Ranier,    143   N. 


Y.  499 ;  Langley  v.  Tilton,  67  N.  H. 
88;  Corey  v.  Corey,  37  N.  J.  Eq. 
198;  Stephens  v.  Flower,  46  N.  J. 
Eq.  340 ;  Bradway  v.  Holmes,  50  N. 
J.  Eq.  311;  Hensler  v.  Senfert, 
52  N.  J.  Eq.  754;  Robeson  v.  Shot- 
well,  55  N.  J.  Eq.  318,  affirmed  55 
N.  J.  Eq.  824;  Borden  v.  Downey, 
6  Vr.  (N.  J.),  74;  7  Vr.  (N.  J.), 
460;  Wooster  v.  Cooper,  53  jST.  J. 
Eq.  682;  33  Atl.  1050;  Donley 
V.  Shields,  14  Ohio,  359;  Stableton 
V.  Ellison,  21  0.  S.  527  Hinkle's 
Appeal,  116  Pa.  St.  490:  Machem- 
er's  Estate,  140  Pa.  St.  544;  Yet- 
ter's  Estate,  160  Pa.  St.  506:  Rhode 
Island,  etc.,  Trust  Co.  v.  Commer- 
cial National  Bank,  14  R.  I.  625 
In  re  Tilton  (R.  I.),  44  Atl.  223 
Bradley  v.  Westcott,  13  Ves.  452 
Parks  V.  American,  etc.,  Miss.  Soc. 
62  Vt.  19:  Miller  v.  Potterfield, 
86  Va.  876 ;  Cresap  v.  Cresap,  34 
W.  Va.  310;  Derse  v.  Derse,  103 
Wis.    113. 


670  LAW    OF    WJLLS. 

to  sell  only  so  much  of  the  property  devised  as  may  be  neces- 
sary for  the  support  and  maintenance  of  the  life  tenant.^ ^- 
Under  such  a  devise  the  life  tenant  can  not  dispose  of  the 
property  by  will  unless  this  power  is  especially  conferred 
upon  him  and  at  his  death  it  will  not  descend  to  his  heirs.^^^ 
He  can  use  only  so  much  of  such  property  as  is  necessary  for 
his  reasonable  support  and  maintenance,  and  he  will  not  be 
allowed  to  waste  or  squander  the  estate.^  ^'^  And  if  the  life 
tenant  should  deed  the  property  fraudulently  and  gratuitously 
the  persons  entitled  under  the  will  to  what  is  left  of  the  es- 
tate at  the  death  of  the  life  tenant  may  maintain  a  suit  to 
compel  a  conveyance  of  the  property  from  the  grantee  to 
themselves.-*^^ 

A  power  of  sale  intended  to  be  exercised  for  the  support 
of  the  widow  and  children  does  not  authorize  the  donee  of 
the  power  to  transfer  the  property  to  some  of  the  children  to 
the  exclusion  of  others.-*"^^ 

The  power  of  appointment  can  not  extend  a  life  estate  into 
a  fee  if  limited  in  any  other  manner,^^'^  as  where  the  right  to 
sell  is  limited  to  a  right  to  sell  with  the  consent  of  some  other 
person  ;^^^  or  where  power  to  sell  is  given  in  order  to  pro- 
vide for  reinvestment  of  the  proceeds.-^  ^^ 

Where  the  testator  devises  land  for  life,  and  confers  upon 
the  life  tenant  an  absolute  and  unlimited  power  of  disposition 
of  the  property  thus  devised,  there  is  very  serious  conflict  of 


132  Chase  v.  Ladd,  153  Mass.  126;  ise  Huston  v.  Craighead,  23  O.  S. 
Bradway  v.  Holmes,  50  X.  J.  Eq.  198;  Cassidy  w  HjTiton,  44  O.  S. 
311;  McGavock  v.  Pugsley,  12  530;  Johnson  v.  Johnson,  51  0.  S. 
Heiss.  689;  Poole  v.  Poole,  10  Lea.  446. 

486;    Downing  v.   Johnson,   5   Cold.  i37  Hensler   v,    Senfert,    52   X.   J. 

229;  Parks  v.  American,  etc.,  Miss.  Eq.  754. 

Soc.  62  Vt.  19;  Cresap  V.  Cresap,  34  iss  Greffet    v.    \Yillman,    114    Mo. 

W.  Va.   310,   and  other  cases   cited  106;     McClure's    Will,     136    N.    Y. 

in  the  preceding  note.  238  ;  Deadrick  v.  Armour,  10  Hum. 

133  See    cases    cited    in     preceding  588. 

notes.  130  ]Machemer's    Estate,    140    Pa. 

134  Glover  v.  Reid,  80  Mich.  228.  St.  544. 

135  Johnston  v.  .Johnston,  51  0. 
St.  446;  Shibla  v.  Ely,  2  Halst.  (X. 
J.  Eq.),  181. 


LAW     OF    WILLS. 


671 


authority,  caused  in  part  by  peculiarities  of  statute  law  in 
some  states,  as  to  whether  such  a  devise  gives  a  life  estate 
with  power  of  disposition,  or  a  fee-simple.  There  can  be  no 
question  that  the  real  intent  of  testator  in  such^  cases 
is  merely  to  give  a  life  interest,  power  of  disposition  be- 
ing added,  generally,  to  provide  for  the  maintenance  of  life 
tenant,  but  no  restriction  of  any  sort  being  imposed  upon  the 
method  of  disposition.  The  weight  of  authority  upon  this 
point  is  that  such  a  devise  gives  only  a  life  estate.^ ''^  If  the 
life  tenant  does  not  exercise  the  power  thus  conferred  by  will 
it  passes  to  the  persons  designated  by  the  will  as  remainder- 
men after  the  life  estate}''^  If  the  life  tenant  exercises  his 
power  of  disposing  of  the  property  in  the  manner  authorized 


140  Smith    V.    Bell,    6    Pet.    U.    S. 
68 ;   Giles  v.  Little,  104  U.  S.  291 ; 
Roberts   v.    Lewis,    153   U.    S.    367 ; 
Douglass   V.    Sharp,    52    Ark.    113; 
Patty  V.  Goolsby,  51  Ark.  61 ;  Morf- 
few  V.  Ey.  Co.,  107  Cal.  587  ;  Mans- 
field V.  Shelton,  67  Conn.  390 ;  Wil- 
son V.   Wright,   91   Ga.   774;    In  re 
Proctor,  95  lo.  172;  Lomaxv.  Shinn, 
162   111.   124;    Skinner  v.  McDowell, 
169    111.    365;    Wolfer    v.    Hemmer, 
144     111.     554;      28     N.     E.     806; 
Wiley    V.    Gregory,    135    Ind.    647; 
Jenkins  v.  Compton,  123  Ind.   117; 
Rusk    V.    Zuck,    147    Ind.    388;    46 
N.  E.   674;    Bowser  v.  Matler,   137 
Ind.    649;    137    Ind.    653;    Crew   v. 
Dickson,  129  Ind.  85 ;  Green  v.  Hew- 
itt, ,97  111.  113;  Ernst  v.  Foster,  58 
Kan.  438  ;  Graham  v.  Botner,  —  Ky. 
—    (1896);    37    S.   W.    583;    Jones 
V.    Jones,    93    Ky.    532;    Payne    v. 
Johnston,  95  Ky.   175;   McCullough 
V.    Anderson,    —    Ky.    —     (1890)  ; 
7    L.    R.    A.    836;     13    S.    W.    353; 
Loeb  V.  Struck   (Ky.) ,  42  S.  W.  401 ; 
Degman  v.  Degman  ( Ky. ) ,  34  S.  W. 
523;     Sise    v.    Willard,     164    Mass. 


48;   Baker  v.  Thompson,   162  Mass. 

40;   Collins  v.  Wickwire,   102  Mass. 

143;    Kent  v.   Morrison,    153   Mass. 

137;    10    L.    R.    A.    756;    Small    v. 

Thompson,    92    Me.    539;    Lewis    v. 

Pittman,    101    Mo.    281;     Harbison 

V.   James,    90   Mo.    411;     Evans    v. 
Folkes,     135     Mo.     397;     McMillan 

V.  Farrow,  141  Mo.  55;  Little  v. 
Giles,  25  Neb.  313;  Rhyne  v.  Tor- 
rence,  109  N.  C.  652 ;  Long  v.  Wald- 
raven,  113  N.  C.  337;  Robeson  v. 
Shotwell,  55  N.  J.  Eq.  318,  affirmed 
55  N.  J.  Eq.  824;  Wooster  v.  Coop- 
er, 53  N.  J.  Eq.  683;  Benz  v.  Fab- 
ian, 54  N.  J.  Eq.  615;  Leggett  v. 
Firth,  132  N.  Y.  7;  Shmid's  Es- 
tate, 182  Pa.  St.  267;  Kennedy  v. 
Kennedy,  159  Pa.  St.  327;  Dye  v. 
Beaver  Creek  Church,  48  S.  C.  444; 
Sires  v.  Sires,  43  S.  C.  266;  Young 
V.  Mut.  Life  Ins.  Co.  101  Tenn. 
311 ;  Davis  v.  Kirksey,  —  Tex.  — 
(1896);  37  S.  W.  994;  Smythe  v. 
Smythe,  90  Va.  638;  Thrall  v. 
Spear,  63  Vt.  266. 

141  See    cases    cited    in    preceding 
note.  ' 


()72  LAW     OF     WILLS. 

by  will,  it  is  generally  held,  on  the  fair  interpretation  of  the 
will,  that  a  fee  passes  to  the  devisee  under  the  power.^^^ 

In  some  cases,  however,  this  power  of  disposition  has  been 
limited  to  a  disposition  for  the  life  of  the  life  tenant.  Thus, 
under  a  devise  to  testator's  wife  for  life  "and  to  disjDose  of 
according  to  her  owti  free  will  and  judgment,  provided  that 
she  never  marries  the  second  time,"  it  was  held  that  she  could 
not  transfer  any  greater  interest  than  one  for  her  own  life.^^^ 

Where  the  life  tenant  is  also  executor,  and  a  power  of  sale 
in  the  land  devised  to  him  as  tenant  is  conferred  upon  him  in 
his  capacity  as  executor  for  the  benefit  of  the  estate  only,  the 
life  estate  is,  of  course,  not  enlarged  into  a  fee;  ^^*  nor  is  it 
where  the  power  is  conferred  upon  him  as  trustee.-^ '*^ 

§577.     Gife  of  life  estate  with  power  to  dispose  of  remainder. — 
When  held  fee, 

A  life  estate  with  absolute  power  of  disposition  of  the  re- 
mainder gives  to  the  life  tenant  no  interest  in  the  remainder 
which  can  be  reached  by  his  creditors  in  any  way,  and  yet 
gives  him  an  oj^portunity  to  dispose  of  this  remainder  at  any 
time  for  his  own  use.  Accordingly,  it  is  held  in  some  juris- 
dictions that  such  devise  vests  a  fee-simple  in  the  first  taker. 
This  holding  is  generally,  however,  based  upon  special  stat- 
utes, which  were  intended  to  enable  the  creditors  of  the  first 
taker  to  reach  his  interest  in  the  remainder. -^^^ 

1*:^  Roberts    v.    Lewis,    153    U.    S.  i**  Robertson    v.    Robertson,    120 

3G7;   Skinner  v.  McDowell,   169  111.  Ind.  333. 

305;     Bowser  v.    Matler,    137    Ind.  i45  Neeley  v.   Boyce,   128   Ind.    1; 

649;  137  Ind.  653;  Ernst  v.  Foster,  Cook  v.  Dyer,  17  R.  I.  90. 

58  Kan.  438 ;  Hemhaviser  v.  Decker,  i^s  Hood    v.    Bramlett,    105    Ala. 

38  N.  J.  Eq.  426 ;  Yetzer  v.  Brisse,  660 ;  Adams  v.  Mason,  85  Ala.  452 ; 

190    I'a.    St.    346;    Dye    v.    Beaver  Alford   v.   Alford,   56   Ala.   350    (so 

Creek     Church,     48      S.      C.      444;  at  common  law  as  to  creditors)  ;  In 

26  S.  E.   717.     So  he  may  consvmie  re  Jones    (1898),   1   Ch.  438;    67   L. 

all   the   personal   property   if  neces-  .1.  Ch.  N.   S. ;   78  Law  Times  Reps, 

sary  for  his  sni)port.     Howe  v.  Ful-  474;   Martin  v.  Fort,  83  Fed.  Rep. 

ler,   19  Ohio,  51.  page  19;   Pellizzarro  v.  Reppert.  83 

i43Dono'lass    v.    Sharp.     52    Ark.  To.    497;    Halliday   \.    Strickler,    78 

113:   Patty  v.  GooLsby.  51   Ark.  61.  lo.    388;    llershey  v.   Meeker   Coun- 
ty Bank,  71  Minn.  255:  In  re  Moer- 


LAW     OF     WILLS.  673 

In  states  taking  this  view  of  such  a  devise,  the  devisee  is 
regarded  as  owner  of  the  fee,  and  may  confer  upon  another 
the  power  of  disposing  of  the  same;^'*^  and  a  limitation  over 
after  a  devise  for  life  with  absolute  power  of  alienation,  is 
repugnant  to  the  nature  of  the  estate  and  void.^'*^  In  some 
states,  by  statute,  such  a  devise  is  treated  as  a  fee  onlv  when 
there  is  no  remainder  over.^'^^  It  is  very  generally  held  in 
these  jurisdictions  that  in  order  to  create  a  fee,  the  power  must 
be  exclusively  for  the  benefit  of  the  life-tenant.  If  for  the  bene- 
fit of  anotlier  or  for  the  benefit  of  the  first  taker  and  others, 
the  estate  is  not  a  fee.-^^^ 

A  devise  to  A  for  life  with  power  to  dispose  of  one-half  of 
the  property  by  wall  gives  A  a  fee  in  one-half  of  the  property.-^^^ 
A  power  to  dispose  of  realty  by  will  is  absolute  power  of  dis- 
position so  as  to  give  the  first  taker  a  fee  where  this  rule  is 
in  force.^^^ 

§578.     Remainders  and  executory  devises. — Definition. 

An  estate  in  remainder  is  an  estate  created  by  the  same 
instrument  by  which  a  prior  estate  in  the  same  property  is 
created,  to  take  efi^ect  upon  the  determination  of  the  prior 
estate. -^^^ 

hing,     154    X.    Y.    423;     Lepley    v.  i49  Hood    v.    Bramlett,    105    Ala. 

Smith,   13  0.  C.  C.   189    (an  obiter,  660. 

as  the  case  is  decided  upon  another  I'o  Johns   v.   Johns,   86   Va.    333; 

point)  ;     Davis    v.    Richardson,     10  Miller  v.  Potterlield,  86  Va.  876. 

Yer.   290 ;    Bean   v.   Myers,    1    Cold.  isi  Hood    v.    Bramlett,    105    Ala. 

226 ;    Bradley   v,    Carnes,    94   Tenn.  660 ;  Adams  v.  Mason,  85  Ala.  452. 

27;     Turner    v.    Durham,     12    Lea.  i32  Hood    v.    Bramlett,    105    Ala. 

316;    Bowman   v.   Bowman,    87   Va.  660;     Hershey    v.    Meeker    County 

354;     Farish    v.    Wayman,    91    Va.  Bank,    71    Minn.    255;    Jackson    v. 

430:    Hall   v.   Palmer,   87   Va.    354;  Edwards,    7    Paige     (X.    Y.)     386; 

May  V.  Joynes,  20  Gratt.  692 ;  Carr  Freeborn  v.  Wagner,  49   Barb.    ( X. 

V.    Effinger,    78    Va.    197;    Cole    v.  Y.),   43;    Leonard    v.    Am.   Baptist 

Cole,   79   Va.   251;    Dillard   v.   Dil-  Miss.    Society,    35    Hun     (X.    Y.), 

lard,  78  Va.  208;  21  S.  E.  669.  290;    Hume   v.    Randall,    141    X.   Y. 

i*T  Dillard  v.  Dillard,  78  Va.  208;  499;    Cutting  v.   Cutting,   86  X.   Y. 

21  S.  E.  669.  522;    Brown   v.   Farmers'   Loan   Co. 

148  Pellizzarro  v.  Reppert,  83   To.  51  Hun,  386. 

497;    Parish    v.    Wayman,    91    Va.  iss  Fleming  v.   Ray,   86   Ga.   533; 

430;  May  v.  Joynes,  20  Gratt.  692;  Barclay  v.  Piatt,  170  111.  384;   Ru- 

Bowen  v.  Bowen,  87  Va.  438;  Hall  dy's  Estate,   185  Pa.  St.  359. 
V.  Palmer,  87  Va.  354. 


674 


LAW    or    WILLS. 


An  executory  devise  is  an  estate  created  by  will  to  take 
effect  at  some  time  in  the  future  after  the  death  of  testator 
without  any  reference  to  the  existence  or  continuance  of  an 
intermediate  estate.^  ^"*  While  it  is  a  general  rule  that  a  power 
of  disposition  in  the  first  taker,  by  which  he  might  defeat  a 
subsequent  estate,  prevents  the  gift  of  such  subsequent  estate 
from  operating  as  a  valid  executory  devise,^ ^'''  still  a  power  to 
the  first  taker  to  dispose  of  the  property  in  some  specified  man- 
ner so  as  to  destroy  the  ultimate  estate,  as  where  a  power 
to  devise  was  impliedly  given  by  making  the  gift  over  condi- 
tional upon  the  death  of  the  first  taker  intestate^  ^^  does  not  in- 
validate the  executory  devise.^  ^'^ 


§579.     Remainder. — How  created. 

No  particular  form  of  words  is  necessary  in  a  will  to  create 
a  remainder.  Any  expression  which  shows  testator's  intent 
that  the  prior  estate  shall  cease  at  the  end  of  a  certain  time, 
or  upon  the  happening  of  a  certain  event,  and  that  a  subse- 
quent estate  shall  vest  in  others,  creates  a  remainder.^^^     Thus 


154  Dean  v.  Dean  (1891),  3  Ch. 
150  In  re  Thomas,  30  Ont.  Rep. 
49;  St.  John  v.  Dann,  66  Conn. 
401;  Glover  v.  Condell,  163  111. 
566;  Bank's  Will,  87  Md.  425;  Fish- 
er V.  Wister,  154  Pa.  St.  65;  Sel- 
man   v.   Robertson,  46   S.   Car.   262. 

"As  applied  to  land,  an  executory 
devise  is  (such  a  limitation  of  a 
future  estate  or  interest  in  lands  as 
the  law  admits  in  'the  case  of  a  will, 
though  contrary  to  the  rules  of  lim- 
itation in  conveyance  at  common 
law).  2  Washburn  on  Real  Prop- 
erty, 5th  Ed.  Marg.  p.  341."  Glo- 
ver V.   Condell,    163   111.   566. 

155  Ide  V.  Ide,  5  Mass.  500;  Bur- 
bank  V.  Whitney,  24  Pick.  146; 
Burleigh  v.  Clough,  52  X.  H.  267; 
Armstrong  v.  Kent,  21  N.  J.  L. 
509;  -Jauretche  v.  Proctor,  48  Pa. 
St.  466;  Gillmer  v.  Daix,  141  Pa. 
St.  505. 


156  Fisher  v.  Wister,  154  Pa.  St. 
65. 

157  See  Sec.  575,  et  seq. 

158  7,i  re  Brooke  (1894),  1  Ch. 
43;  Smith  v  Chadwick,  111  Ala. 
542  (1896),  436:  Marshall  v.  Au- 
gusta, 5  App.  1).  C.  183  (a  devise  to 
be  under  the  exclusive  control  of  A 
for  her  life,  and  on  her  death  to  be 
distributed  among  her  children)  ; 
Fleming  V.  Ray,  86  Ga.  533;  Tin- 
dall  v.  Miller,  143  Ind.  337; 
Moor'^s  V.  Hare,  144  Ind.  573;  43 
N.  E.  870;  Furnish  v.  Rogers,  154 
111.  569;  Barclay  v.  Piatt,  170  111. 
384  (a  devise  of  property  to  be 
placed  "in  the  hands  of  the  admin- 
istrators for  the  benefit  of  my 
daughter  and  my  son,  for  them 
and  their  children  should  they  have 
any")    Terry  v.  Bourne,  —  Ky  — 


LAW    or    WILLS. 


676 


a  devise  to  the  daughters  of  testator,  followed  bj  the  state- 
ment that  it  is  the  wish  and  desire  of  testator  that  at  the  death 
of  these  daughters  the  property  shall  descend  from  them  to 
their  children,  was  held  to  create  a  life  estate  in  the  daughters 
with  remainder  in  the  children.^ ^^ 

A  gift  to  A,  remainder  to  the  lawful  heirs  of  her  body,  and 
if  she  dies  without  lawful  heirs,  to  B,  gives  B  a  remainder.^  ^"^ 
A  devise  to  testator's  wife  for  life,  and  at  her  death  "absolute- 
ly to  my  daughter  A,  if  she  still  survive.  If  she  shall  be  de- 
ceased, it  is  my  desire  that  the  property  do  pass  to  her  heirs," 
gives  A  a  vested  remainder  at  testator's  death.^^^  A  freehold  in 
trust  for  A  for  life,  and  then  to  A's  children,  as  he  should  ap- 
point, was  held  to  give  an  equitable  remainder  to  such  children, 
which  is  not  divested  by  A's  failure  to  appoint.^ ^^ 

As  in  other  cases  of  construction,  testator's  intention  to 
determine  a  particular  estate  at  a  given  contingency,  must  be 
gathered  from  the  whole  will  and  not  from  disjointed  clauses.^ ^^ 
Thus  a  remainder  over  of  the  shares  of  three  beneficiaries  to 
their  children  respectively,  means  upon  the  death  of  all  of  the 
beneficiaries,  and  not  upon  the  death  of  each,  where,  in  an- 
other clause  of  the  will,  the  income  from  the  entire  fund  is 
disposed  of  during  the  life  of  the  survivor  of  these  benefi- 
ciaries.^ ^^ 


(1896)  ;   33  S.  W.  403;   McQuire  v. 
Moore,    108   Mo.   267;    Bird   v.   Gil- 
liam, 121  N.  Car.  326;   Brombacher 
V.  Berking,  56  N.  J.  Eq.  251;  Hens- 
ler   V.    Senfert,    52   N.    J.    Eq.    754 
Duclos   V.   Benner,    136   N.   Y.   560 
Shadden    v.    Hembree,    17    Or.    14 
Wallace    v.    Dening,     152    Pa.     St 
251;     Rudy's    Estate,    185    Pa.    St 
359;    Simpson   v.   Cherry,    34   S.   C 
68;  Hurt  v.  Brooks,  89  Va.  496. 

159  Collins  V.  Williams,  98  Tenn. 
525.  This  is  distinguishable  from 
the  cases  given  in  Sec.  574.  In  those 
cases  the  intent  was  clearly  to 
create   a   fee,   but   to   direct  its   de- 


scent from  the  first  taker.  In  this 
case  the  intent  of  testator  from  the 
whole  will  was  to  create  a  life-es- 
tate only. 

leoBird  v.  Gilliam,  121  N.  Car. 
326. 

leiTindall  v.  Miller,  143  Ind. 
337.  A  similar  view  of  a  similar 
devise  is  taken  in  Moores  v.  Hare, 
144  Ind.  573;  43  N.  E.  870. 

162  In  re  Brooke  (1894),  1  Ch. 
43. 

163  Shadden  v.  Hembree,  17  Or, 
14. 

164/^  re  Rubbins  (Ch.),  78  L.  T. 
R.  218. 


676  LAW     OF     WILLS. 

§580.     Kemainder  after  fee-simple. 

A  remainder  over  after  a  gift  of  a  fee  simple,  or  upon  an 
absolute  gift  of  personal  property  is  void  at  common  law,  and 
this  rule  is  now  in  force  except  where  specifically  modified 
by  statute.^  ^'^  The  rule  that  the  remainder  over  is  void  is  ap- 
plied, however,  only  where  it  clearly  appears  that  the  first 
beneficiary  is  to  get  an  absolute  interest.  Where  it  is  pos- 
sible to  reconcile  the  two  gifts  by  construing  the  first  as  a  life 
estate  only,  this  will  be  done.^^^ 

§581.     Remainder  after  life  estate  with  power  of  disposition  of 
fee. 

A  remainder  over  after  a  life  estate,  in  which  the  life  ten- 
ant has  a  power  of  absolute  disposition,  is  valid  as  to  the 
property  not  disposed  of,  in  jurisdictions  where  such  a  power 
does  not  enlarge  the  life  estate  into  a  fee.^^"  Such  a  re- 
mainder is,  of  course,  ended  as  to  property  transferred  by  vir- 
tue of  the  power  of  disposition  ;^^^  but  the  proceeds  of  such 
sale,  no  matter  how  changed  in  form,  pass  to  the  remainder- 
men if  undisposed  oi}^^ 

165  Central  M.  E.  Church  v.  Har-  Wilhelm    v.    Calder,    102    lo.    342 ; 

ris,  62  Conn.  93;  Glover  v.  Condell,  Collins  v.  Williams,   98   Tenn.   525. 

163  111.   566;   Dodson  v.   Sevars,  52  i67  Coulson   v.   Alspaugh,   163   111. 

N.    J.    Eq.    611;    Fisher    v.    Wister,  298;   Kenney  v.  Keplinger,   172  111. 

154   Pa.    St.    65;    Bowen   v.   Bowen,  449;    Walker  v.   Pritchard,   121   111. 

87  Va.  438;  In  re  'Lowman  (C.  A.),  221;    Kaufman  v.   Breckinridge,  117 

(1895),  2  Ch.   348    (where  absolute  111.   305;    Hamlin  v.   U.   S.   Express 

estates  are   limited   over   to   several  Co.   107  111.  443;   Keniston  v.  May- 

in  succession,  the  first  of  such  per-  hew,     169     Mass.     166;    Crozier    v. 

sons  surviving  the  testator  has  been  Bray,    120   N.   Y.    306. 

held   to   take   absolutely  to   the  ex-  i68  Hovey   v.    Walbank,    100    Cal. 

elusion   of   those  whose  estates   fol-  192. 

lowed  his,  even  though,  had  any  leo  Keniston  v.  Mayhew,  109 
•of  the  beneficiaries  in  interest  pre-  Mass.  166;  Redman  v.  Barger,  118 
ceding  sur\nved  the  testator,  he  Mo.  568  (and  where  the  life  ten- 
would  have  received  nothing).  So  ant  deposited  the  proceeds  of  such 
a  gift  over  after  an  absolute  gift  a  sale  in  a  savings  bank  in  her  own 
of  personalty  is  void.  Robertson  name  in  trust  for  another,  it  was 
V.  Hardy,  —  Va.  — ,  1896;  23  S.  E.  held  that  this  w^as  not  such  a  dis- 
766;  Wilmoth  v.  Wilmoth,  34  W.  position  of  proceeds  as  to  provent 
Va.  426.  them  from  passing  to  the  reminder- 
166  Stivers  v.  Gardner,  88  lo.  307  :  men  ^ . 


LAW     OF    WILLS.  677 

§582.     Remainder  over  on  condition  broken. 

A  remainder  may  be  created  hy  a  gift  over  upon  condition, 
broken,  where  the  original  estate  was  defeasible  by  condition 
subsequent.  Thus,  a  remainder  is  created  by  a  gift  to  A  in 
fee,  but  if,  at  the  time  of  his  death,  no  issue  survive  him  (or 
upon  any  similar  contingency,  importing  a  definite  failure  of 
issue)  then  to  B.^'^^  This  form  of  remainder  is  usually  created 
by  a  gift  to  the  members  of  a  class,  either  as  a  class  or  indi- 
vidually by  name,  with  a  gift  over,  in  case  of  the  death  of 
any  one  of  the  members  without  issue,  to  the  remaining  mem- 
bers.^'^^  In  such  a  devise  where  A  died  without  issue  and  his 
share  passed  to  B  and  C,  the  other  members  of  the  class,  and 
then  B  died  without  issue,  it  was  held  that  his  share  received 
under  the  will  directly,  passed  to  C,  but  his  interest  in  A's 
share  passed  to  his  heirs.-^'^^ 


§583.     Validity  of  remainder. 

A  remainder  over  is  void  if  it  conflicts  with  the  rule  against 
perpetuities,  or  if  it  creates  an  unlawful  restraint  upon  aliena- 
tion in  conflict  with  the  statute  of  the  state  where  the  land  is 
situated.-^ '^'*  A  remainder  over  may,  furthermore,  be  void  be- 
cause the  beneficiary  is  not  sufliciently  definite.-^ ^^  A  re- 
mainder is  not  void  because  the  remaindermen  Avould  have 
taken  the  property  by  descent  in  the  absence  of  a  will.^'^^ 

i7iEosenau      v.      Childress,      111  W.   86G;    16  Ky.   L.   R.   689;    Davis 

Ala.    214;    Holcomb    v.    Wright,    5  v.  Davis,  118  N.  Y.  411. 

App.    D.    C.    76;    Johnson   v.   John-  i"  McGee  v.  Hall,  26   S.  C.   179; 

son,  128  Ind.  93.  see  Sec.  677. 

172  King  V.   Frost,  L.  R.   15  App.  i74  Post    v.     Rohrbach,     142     HI. 

Cas.   548;    Baxter   v.  Winn,  87   Ga.  600;   see  See.  625. 

239;    Madison   v.    Larmon,    170    III.  i"5  Keaney  v.  Keaney,  72  Md.  41 

65;    Best   v.   Van   Hook    (Ky. ),    13  (a   devise  over   the   death   of  testa- 

S.  W.  119;  11  Ky.  L.  R.  753;  Louis-  tor's  son  "to  the  next  heirs"), 

villa    Driving,    etc.    Association    v.  i"6  Rowley    v.     Sauns,     141     Ind. 

Louisville   Trust    Co.    (Ky.),    29    S.  179. 


678  LAW    OF    WILLS. 

§584.     Waiver  of  remainder. 

Where  a  remainder  is  clearly  created  by  will,  it  is  not 
waived  by  any  conduct  of  the  remainderman  in  recognition  of 
the  rights  of  the  life  tenant,  not  amounting  to  an  estoppel.^ '^''' 

§585.     What  property  passes  in  remainder. 

The  property  passed  in  remainder  must  be  ascertained  from 
the  provisions  of  the  entire  will.^'^^  Ordinarily,  where  a  re- 
mainder is  clearly  created,  a  subsequent  provision  affecting 
the  property  in  which  the  particular  estate  is  created,  will 
have  the  same  effect  upon  the  remainder.^ '^^  And  a  specific 
provision  for  particular  property  supersedes  general  provi- 
sions not  applying  specifically  to  the  property  in  question.^  ^*^ 

§586.     Power  of  life  tenant  to  bind  remaindermen. 

Where  specific  pieces  of  property  were  devised  to  two  or 
more  for  life,  with  direction  to  them  to  equalize  their  shares, 
remainder  to  their  respective  heirs,  it  was  held  that  a  par- 
tition between  the  life  tenants  bound  the  lieirs.^*^  Property 
devised  to  A  for  life,  remainder  to  her  children,  may  be  sold 
upon  the  petition  of  A  (who  was  testator's  widow)  and  her 
children.^  ®^ 

§587.     Distinctions  between  interests  in  severalty,  interests  in 
common  and  joint  interests. 

In  determining  the  interests  passed  by  will  it  is  often  im- 
portant to  ascertain  whether  testator  intended  to  confer  upon 
beneficiaries,   interests   in   severalty,   or   in   common,   or  joint 

iTTDurfee   v.    MacNeil,    58    O.    S.  Pa.  St.  501;   In  re  Lewis,   17   R.  I. 

238;    Semmig   v.   Mirrihew,   67   Vt.  642. 
38.  181  Hadley  v.   Hadley,    100   Tenn. 

178  Keaney    v.    Keaney,     72    Md.  446. 

41.  182  0x  parte,  Yancey,  124  N.  Car. 

179  Lyon  V.  Clawson,  56  N.  J.  Eq.  151.  (The  objection  was  made  to 
642;   Lyman  v.  Turner,  62  Vt.  465.  the   sale   and   title   thereunder   that 

180  Ellis  V.  Throckmorton,  52  N.  A  might  have  other  children  who 
J.  Eq.  702;  Hiestand  v.  Meyer,  150  would  take  under  the  will.) 


LAW    OF    WILLS.  ^'^ 

interests.  If  an  interest  in  severalty  is  created  the  benefi- 
ciary is  vested  with  the  only  estate  created  in  the  property 
and  has  exclusive  right  of  possession. 

If  the  interest  is  one  in  common,  beneficiary  ha^  not  the  ex- 
clusive right  of  possession,  but  his  enjoyment  of  the  property 
devised  is  limited  by  similar  rights  of  others  in  the  same  prop- 
erty. The  interest  of  the  beneficiary,  however,  will  descend  just 
as  a  several  interest  of  the  same  extent  of  duration  would  de- 
scend.^ ^^ 

A  joint  interest  is  one  in  which  but  one  estate  is 
created  which  vests  in  all  the  beneficiaries  as  one  tenant.  ^  An 
incident  of  this  estate  and  its  distinguishing  characteristic  is 
the  right  of  survivorship.  On  the  death  of  a  joint  tenant,  his 
joint  interest  survives  to  the  remaining  joint  tenants,  and  does 
not  descend  as  a  similar  estate  held  in  severalty  would  de- 
scend. So  where  a  joint  estate  was  devised  to  two  upon  condition 
subsequent,  which  was  broken  as  to  one,  the  entire  interest 
passed  to  the  other.^^* 

This  statement  of  the  differences  between  these  classes  of  es- 
tates is  imperfect,  but  still  is  sufficient  to  show  the  importance 
to  the  beneficiary  of  distinguishing  between  them. 

§588.     Words  creating   an   estate   in   common,  as   distinguished 
from  an  estate  in  severalty. 

Ordinarily  testator's  intention  to  create  an  estate  in  sev- 
eralty is  so  plainly  worded  as  to  be  easy  of  enforcement,  and 
immistakable.  In  such  cases  there  will,  of  course,  be  few 
express  precedents. 

An  estate  in  common  is  sometimes  created  where  testator 
was  attempting  unsuccessfully  to  create  an  estate  in  sev- 
eralty.^ ^^  Thus,  where  testator  owned  a  tract  of  land,  on  the 
front  of  which  were  several  buildings,  so  built  that  they  must 
be  used  together,  some  of  which  overhung  others,  and  on  the 
rear  of  which  was  a  building  used  in  connection  with  all  the 

i83Tompkin's    Estate,    154   N.   Y.  i85  Heller  v.  Heller,  147  HI.  621; 

^^34  Byrn   v.   Kleas,   15   Tex.   Civ.   App. 

184  Rockwell    V.    Swift,    59    Conn.  205. 
289. 


680  LAW    OF    WILLS. 

buildings  in  the  front  of  the  lot,  it  was  held  that  a  devise  of 
the  various  buildings  by  street  numbers  could  not  give  interests 
in  severalty.-^  ^^ 

So  a  devise  of  a  certain  number  of  acres  out  of  a  tract,  not 
setting  it  off  by  metes  and  bounds,  or  otherwise  specifying  it, 
gives  such  devisee  an  interest  in  common  with  the  devisee  of 
the  residue  of  the  tract.^^^  So  a  gift  of  income,  arising  out 
of  an  entire  tract  of  realty,  may  be  held  to  be  in  common  to 
those  to  whom  the  realty  itself  is  devised  in  severalty.  This 
principle  applies  with  especial  force  to  oil  and  gas  leases.^ ^^ 

§589.     Distinction  between  joint  tenancies  and  estates  in  com- 
mon.— Common  law  rule. 

At  common  law  a  devise  to  two  or  more  was  presumed  to 
be  a  devise  to  them  jointly,  unless  testator's  intention  to  create 
an  estate  in  common  appeared  clearly  upon  the  will.  This 
rule  is  still  in  force  in  most  jurisdictions  where  joint  tenancies 
still  exist.^^^  Thus  a  devise  to  the  wife  of  testator's  son  and 
her  children  was  held,  in  the  absence  of  anything  in  the  will 
showing  a  contrary  intention,  to  be  a  devise  in  joint  ten- 
ancy,^ ^^  and  a  devise  to  testator's  surviving  children  is  held 
to  create  a  joint  tenancy.^ ^^  If  testator's  intention  to  create 
an  interest  not  in  its  nature  joint,  appeared  on  the  will,  the 
estate  devised  to  two  or  more  was  held  to  be  an  estate  in  com- 
mon.    Thus  a  devise  to  several  "share  and  share  alike,"  ^^^  ^^ 

186  Heller  v.  Heller,   147  111.  621,  and  should  be  divided  among  them 

isTMcClure    ^A.    Taylor,     109    N.  in    proportion    to    the     number     of 

Car.    641;     Sanderson    v.    Bigham,  acres    devised    to    each.      Wettengel 

40  S.  Car.    501;   Byrn  v.  Kleas,   15  v.  Gormley,   160  Pa.   St.  559. 

Tex.    Civ.    App.    205;     Midgett     v.  isa /)i  re  Yates   ( 1891 ) ,  3  Ch.  53; 

Midgett,    117   N.   Car.   8.  In  re  Atkinson    (1892),   3   Ch.   52; 

18S  Testator    devised    a    tract    of  Binning   v.     Binning,     13     Reports, 

land,    which    was   leased    as   an   en-  054;   O'Brien  v.  Dougherty,   1   App. 

tirety  to  an  oil  company,  to  several,  D.  C.  148 ;  Noble  v.  Teeple,  58  Kan. 

alloting  specific  tracts   to  each.    It  398. 

was  held  that  although  all  the  wells  iQO  Noble  v.  Teeple,  58  Kan.  398. 

were  upon  the  tract  devised  to  one,  isi  O'Brien  v.  Dougherty,   1   App. 

the   royalties   reserved   in   the   lease  D.  C.  148. 

passing  to  the  devisees  in  common,  i92 /n  re  Yates   (1891),  3  Ch.  53. 


LAW    OF    WILLS.  681 

a  devise  of  a  remainder  to  the  "respective"  heirs  of  certain 
life  tenants  created  estates  in  common.  But  a  devise  to  "all 
and  every"  children  did  not  create  an  estate  in  common.^  ^^ 


§590.     Modern  statutory  rule. 

The  common  law  rule  that  a  devise  or  grant  to  two  or  more 
is  presumed  to  create  a  joint  tenancy  has  been  abolished  in 
many  jurisdictions,  partly  by  change  in  judicial  decision,  but 
more  generally  by  statute.  In  some  states  joint  tenancies  have 
been  abolished,  and  in  others  it  is  provided  that  a  devise  or 
grant  to  two  or  more  shall  be  presumed  to  create  an  estate  in 
common.^  ^"^ 

§591.     Definite  and  indefinite  failure  of  issue. — Distinction  and 
definition. 

Where  the  gift  over,  in  the  event  of  dying  without  issue,  is 
not  substitutional  in  its  nature,  and  it  appears  that  the  death 
contemplated  might  take  place  after  testator's  deatli,  the  ques- 
tion presented  for  consideration  is  at  what  time  this  failure 
of  issue  is  to  exist.  The  will  may  be  so  worded  as  to  show 
that  the  failure  of  issue  spoken  of  was  to  occur  at  the  death 
of  a  specified  person,  generally  the  first  taker.  Under  such  a 
construction  the  estate  granted  was  a  fee  simple,  conditioned 
upon  the  existence  of  issue  of  the  first  taker  at  the  specific 
time  indicated.  This  was  known  as  a  definite  failure  of 
issue. -^^^ 

On  the  other  hand,  the  will  might  be  so  worded  as 
to  show  that  testator  did  not  contemplate  the  failure  of  issue 
at  any  specified  time,  but  that  he  intended  the  limitation  over  to 
take  effect  only  if  the  issue  of  the  first  taker  should  ever  fail 

193  Binning   v.    Binning,    13    Rep.  Estate,  154  N.  Y.  634;  Kimberly,  in 

654.  re,      150     N.     Y.     90;      Sturm     v. 

19*  Humason  V.  Andrews   (Conn.),  Sawyer,    2    Pa.    Sup.    Ct.   254;    Gil- 

(1900),    45    Atl.    354;    Bonner    v.  man  v.  Morrill,  8  Vt.  74. 

Hastey,    90    Ga.    208;     McCord    v.  19- Glover    v.    Condell,      163     111. 

Whitehead,    98    Ga.    381;    Noble   v.  566;    Moorehead's    Estate,    180    Pa. 

Teeple,    58    Kan.    398;     Tompkin's  St.   119. 


682  LAW     OF     WILLS. 

at  any  time  in  the  future.  Under  such  a  construction  the  es- 
tate granted  was  an  estate-tail  in  the  first  taker  with  limita- 
tion over  at  the  termination  of  such  estate-tail.^^*' 

§592.     Construction   of   "dying   without   issue." — Gifts   of   per- 
sonalty. 

The  expression  "dying  without  issue/'  when  used  with  ref- 
erence to  a  gift  of  personal  property,  has  been  held  prima 
facie  to  mean  issue  living  at  the  death  of  the  first  taker.^^'^ 
Another  statement  of  this  rule  is  that  in  bequests  of  person- 
alty the  courts  seize  "slight  circumstances,"  as  showing  that 
testator  intended  an  indefinite  failure  of  issue.^^^  Thus,  a 
gift  over  on  the  death  of  A  "without  living  issue"  has  been 
held  to  imply  a  definite  failure  of  issue  at  the  death  of  A.^^^ 

§593.     Construction  of  "dying  without  issue." — Devises  of  realty 
at  common  law. 

When  the  testator  provides  in  his  will  for  a  devise  over  in 
the  event  of  the  first  taker's  "dying  without  issue,"  or  "dying 
without  heirs  of  his  body,"  or  some  similar  expression,  the 
common  law  held  quite  uniformly,  though  apparently  contrary 
to  the  ordinary  meaning  of  the  words,  that  the  failure  of 
issue  thus  indicated  was  an  indefinite  failure  of  issue;  hence, 
under  such  gift  of  realty,  the  first  taker  took  a  fee-tail  with 
limitation  over  to  the  person  indicated ;  while  a  gift  of  person- 
alty passed  an  absolute  interest  therein,  the  courts  not  recog- 
nizing any  interest  after  a  fee-tail  of  personal  property.^*^*^ 

19G  Barber   v.    Pittsburg,    etc.   Ry.  lo"  Glover    v.    Condell,      163     111. 

Co.  166  U.  S.  83;  Hoff's  Estate,  147  566;    Smith    v.    Kirabell,     153     111. 

Pa.    St.    636;     Selman    v.    Robert-  368. 

•son,   46    S.    C.   262;    Mendenhall   v.  200  Wilson    v.    Wilson,    46    N.    J. 

Mower,   16   S.  C.   303;   McCorkle  v.  Eq.    321:    Morehouse   v.    Cotheal,    1 

Black,    17   Rich.   Eq.   407;    Terry  v.  Zab.  480;   Moore  v.  Rake,  2  Dutch. 

Brunson,   1   Rich.   Eq.   78:    De  Tre-  574;    Chetwood  v.   Winston,    11   Vr. 

ville  V.   Elis,  Bail.  Eq.   40.  337;    so  "in  case  of  his  death  .  .  . 

197  Moorehead's    Estate,    180    Pa.  without    issue";     Barber    v.    Pitts- 

gt.   119.  burg.    etc.    Ry.    Co.    166   U.    S.    83; 

19S  Glover    v.    Condell,      163     111.  Shearer  v.  Miller,  185  Pa.  St.  149. 
566;    Ladd    v.    Harvey,    21    N.    H. 
514;    Bedford's   Appeal,   40   Pa.    St. 
18. 


LAW    OF    WILLS.  683 

In  jurisdictions  which  took  the  former  view  of  the  meaning 
of  "dying  without  issue,"  the  rule  that  it  imported  an  indefi- 
nite failure  of  issue  was  only  a  prima  facie  rule,  and  might  be  re- 
butted by  the  context  of  the  will.-^^  Thus  a  provision  that 
upon  the  death  of  the  beneficiary  without  issue  his  share  of 
the  estate  shall  be  divided  among  certain  persons  who  survive 
him,  the  reference  to  survivors  fixes  the  death  of  the  first 
taker  as  to  the  time  for  determining  the  failure  of  issue.^*^^ 
So  a  gift  to  A,  and  if  she  "die  without  leaving  any  heir  or 
heirs"  to  B,  was  held  to  import  a  definite  failure  of  issue.^*'^ 

In  accordance  with  this  principle  of  construction  a  gift  over 
in  case  of  the  beneficiaries'  "dying  without  offspring,"  was  held 
to  impart  an  indefinite  failure  of  issue,  "offspring"  being  re- 
garded as  synonymous  with  "issue."  ^^'^ 

§594.     Modern  rule. 

This  common  law  construction  was  so  contrary  to  the  in- 
tention of  the  average  testator  drawing  his  will  without  legal 
advice  that  it  was  repudiated  from  the  first  by  some  American 
courts,  and,  unless  the  context  of  the  will  clearly  called  for 
a  different  construction,  failure  of  issue  was  construed  as 
meaning  definite  failure  of  issue.^*^^ 

In  other  states  this  common  law  rule  has  been  changed  by 
statute,  so  that  the  rule  today,  in  the  majority  of  jurisdictions, 
is  that  the  use  of  the  words  "dying  without  issue"  after  wor-ds 
which  would  give  an  estate  in  fee,  simply  created  a  fee  con- 
ditioned upon  the  existence  of  issue  of  the  first  taker  at  the 

201  Wilson  V.  Wilson,  46  N".  J.  Eq.  Sm.  167.  A  contrary  view  was 
321 ;  Moorehead's  Estate,  180  Pa.  taken  of  this  phrase  in  the  same 
St.    119.  will  hy  the  courts  of  Pennsylvania. 

202  Moorehead's    Estate,    180    Pa.  Mitchell   v.   Ry.   165   Pa.   St.   645. 
St.  119.  203  Collins    V.    Thompson,   —   Ky. 

203  Fairchild  v.  Crane,  2  Beav.  — ,  43  S.  W.  227 :  Parish  v.  Fer- 
105;  Wilson  v.  Wilson,  46  N.  J.  Eq.  ris,  6  0.  S.  56.3;  Niles  v.  Gray,  12 
321;  Groves  v.  Cox,  11  Vr.  40.  0.   S.   320;   Taylor  v.   Foster,   17  O. 

204  Barber  v.  Ry.  166  U.  S.  83,  S.  166;  Smith  v,  Hankins,  27  O.  S. 
citing    Young    v.    Davies,    2    Dr.    &  371 ;   Piatt  v.  Sinton,  37  O.  S.  353. 


684  LAW    OF    WILLS. 

time   designated,   which   is   generally   the   death   of   the    first 
taker.-°^ 

The  time  at  which  this  failure  of  issue  is  to  occur  may 
also  be  the  termination  of  the  life  estate  in  some  one  other 
than  the  first  taker,  as>  for  example,  a  grant  to  testator's  wife 
for  life,  with  remainder  over  to  testator's  children,  but  if  they 
should  die  without  issue,  then  to  others  designated.^"'*^  So  a 
gift  to  the  daughter  of  testator  in  trust,  to  be  held  in  trust 
until  her  majority  when  it  was  to  be  paid  over  to  her,  and  in  case 
of  her  death  without  lawful  issue  living,  such  property  to  go 
to  certain  specified  devisees,  it  was  held  that  the  time  fixed 
for  the  failure  of  issue  was  the  termination  of  the  minority 
of  the  daughter,  and  that  by  her  "death  without  issue"  was 
meant  her  death  during  her  minority.^°® 

§595.     Personal  property. — Absolute  ownership. — Rule  in  Shel- 
ley's Case. 

In  bequests  of  personal  property  the  rule  was  very  dif- 
ferent from  that  obtaining  in  devises  of  real  estate.  A  gift 
of  personal  property  by  will  was  held,  if  nothing  to  the  con- 
trary appeared  in  the  will,  to  pass  the  entire  interest  which 
the  testator  had  in  such  property.^*^*^  At  common  law,  there- 
fore, the  question  in  bequests  of  personal  property  was  whether 

206 /jj  re  Edwards    (1894),   3  Ch.  194;   Brooks  v.  Kipp,  54  X.  J.  Eq. 

644,  64  L.  J.  Ch.  (N.  S.) ,  179 ;  First  462;    Fairchild   v.    Crane,    13   jST.   J. 

National  Bank  v.  De  Pauw,  75  Fed.  Eq.    105;    Kelley   v.    Williams,    113 

775;    St.   John   v.    Dann,    66    Conn,  N.  C.  437;  Nes  v.  Ramsay,  155  Pa. 

401;   Lednum  v.  Cecil,  76  Md.  149;  St.  028;   Shearer  v.  Miller,  185  Pa. 

Anderson    v.    Brown,    84    Md.    261;  St.   149;   De  Wolf  v.  Middleton,   18 

Weybright  v.   Powell,   86   Md.   573;  R.  I.  810;   Bethea  v.  Bethea,  48   S. 

Welch  V.  Brimmer,   169  Mass.  204;  Car.  440. 

Schmaunz  v.  Goss,   132  Mass.   141;  207  Corey    v.    Springer,    138    Ind. 

Whitcomb  V.  Taylor,  122  Mass.  243;  506;     Crozier    v.    Cundall,    99    Ky. 

Brightman  v.  Brightman,  100  Mass.  202;  Dunlap  v.  Fant,  74  Miss.  197; 

238;  Nightingale  v.  Burrell,  15  Pick-  20  So.  1828. 

ering,    104:    Nowland   v.    Welch,   88  208  Colby  v.  Doty,  158  N.  Y.  323, 

Md.    48;    Mnllreed    v.     Clark.     110  affirming  92  Hun,  607. 

Mich.  229;    68   N.  W.   138;   Dunlap  209  Mulvane    v.    Rude,    146    Ind. 

V.  Fant,  74  Miss.   197;   20  So.  874:  476. 
Brokaw   v.   Peterson,    15   N.   J.    Eq. 


LAW    OF    WILLS.  ^^^ 

the  context  of  the  will  showed  an  intention  to  giving  any- 
thing less  that  the  absolute  ownership  of  such  property,  and, 
if  no  such  intention  appeared,  the  absolute  ownership  was  held 

to  pass. 

This  rule  applies  with  even  greater  force  under  modern 
law,  where  the  prima  facie  rule  of  construction  is  that  testator 
is  disposing  of  his  entire  estate.  Accordingly,  it  was  held  thar 
gifts  of  personal  property  are  absolute  gifts  unless  something 
appears  in  the  will  to  the  contrary.^^^ 

A  gift  of  personalty  to  A  fc^r  life,  to  be  divided  among  her 
children  at  her  death,  with  a  power  to  her  to  give  to  any  of  her 
children  anything  that  "she  was  able  or  thinks  proper  to  give,'' 
was  held  to  give  A  absolute  ownership  of  such  personalty.^^^ 
The  rule  that  a  life  estate  only  passes  by  a  gift  of  a  life  estate 
with  full  power  of  disposition  is  said  to  apply  to  personalty 
as  well  as  to  realty.^^^ 

While  the  Rule  in  Shelley's  Case  could,  from  its  terms,  ap- 
ply only  to  devises  of  real  property,  a  corresponding  rule  was, 
by  analogy,  applied  to  personal  property,  and  a  gift  of  personal 
property  to  one  for  his  life,  with  remainder  over  to  his  heirs, 
was  held  to  pass  an  absolute  interest  in  the  first  taker.^^^ 

The  Paile  in  Shelley's  Case  was  never,  even  at  common  law, 
as  arbitrary  in  gifts  of  personalty  as  in  devises  of  real  estate. 
In  bequests  of  personalty,  the  courts  paid  more  attention  to 
the  actual  wishes  of  the  testator,  and  were  more  likely  to  treat 
the  estate  of  the  first  taker  as  a  life  estate  with  a  remainder 
over  to  his  children  or  descendants  than  they  were  in  devises  of 
real  property  similarly  expressed,  if  the  law  permitted  life 
estates  in  such  personalty. 

Accordingly,  it  was  well  settled,  even  at  common  law,  that 

210  Browning    v.    Southworth,    71  211  Eobertson  v.  Hardy,  —   (Va.) 

Conn.    224;     Loring    v.    Hayes,    86  —  1896;  23  S.  E.  766. 

Me.    351;    Thomae    v.    Thomae,    —  212  Godshalk   v.    Akey,    109   Mich. 

N.  J.  _;   18  Atl.  355;  Brombacher  350,  1896;  7  N.  W.  336;  Wooster  v. 

V.  Berking,  56  N.  J.  251 ;  Washbon  Cooper,  53  N.  J.  Eq.  682. 

V.  Cope,  144  N.  Y.  287  ;  McCune  v.  213  Nealis  v.  Jack,  N.  B.  Eq.  Cas. 

Baker,    155    Pa.    St.    503;    Cook    v.  426;    Smith  v.  McCormick,  46  Ind. 

Bucklin,    18    R.    I.    666;    Bailey    v.  135. 
Hawkins,   18  R.  1.  573. 


686  LAW     OF     WILLS. 

any  gift  of  personal  property,  in  terms  which  would  pass  a 
fee-simple  in  realty ,^^^  or  a  fee-tail,^^^  would  pass  an  absolute 
interest  in  personal  property.  So  wdiere  the  income  in  j)er- 
sonalty  is  given  to  one,  without  limiting  it  to  his  life,  it  is 
held  that  absolute  ownership  of  the  property  from  which  the 
income  is  derived  passes  to  legatee.^^^ 

A  life  estate  in  personalty  without  any  gift  over  is  held  in 
Delaware  to  pass  an  absolute  interest.^^'^ 

Since  the  abolition  of  the  Rule  in  Shelley's  Case,  a  bequest 
of  the  income  of  personal  property  with  remainder  over  to  the 
heirs  and  children  of  the  first  taker  passes  merely  a  life  estate 
to  the  first  taker  and  not  an  absolute  interest."^* 

§596.     Life  interests  in  personalty. — Possibility  of  creation. 

While  at  one  time  it  was  questioned  v/hether  a  life  estate 
could  be  created  in  personalty,  it  is  now  well  settled  that,  as  a 
general  rule,  such  estate  may  be  created.^^^ 

There  are  still  some  exceptions  to  this  general  proposition. 
If  the  personalty  is  perishable  in  its  nature,  and  of  such  sort 
that  it  can  be  used  only  by  consuming  it,  a  gift  to  the  first  taker 
for  life  passes  the  property  absolutely.^^*^  A  controlling  reason 
for  this  view  is  that  if  testator  wishes  to  prevent  the  life  ten- 
ant from  holding  the  perishable  personalty  as  absolute  owner, 
he  may  provide  in  the  will  for  the  sale  of  such  property,  and 
to  invest  the  proceeds  at  interest,  the  income  only  to  be  paid 
to  the  first  taker.^^^ 

214  Mason    v.    Pate,    34    Ala.    379.       Pniden    v.    Pruden,    14    0.    S.    251; 

215  Hughes  V.  Nicklas,  70  Md.  Keating  v.  Reynolds,  1  Bay  ( S. 
484;  14  Am.  St.  Rep.  377.  Car.),   80;    Williamson   v.   Hall,    10 

2i6Wellford  v.  Snyder,  137  U.  S.  Am.  Law  Reg.  N.   S.  466;   see  Sec. 

521 :    Lorton   v.    Woodward,    5   Del.  597  and  cases  there  cited. 

Ch.    505 ;    Brombacher    v.    Berking,  220  Dunbar  v.  Woodcock,  10  Leigh 

56   N.   J.   Eq.      251.  (Va.),   628:    Markley's   Appeal,    132 

217  Derickson    v.    Garden,    5    Del.  Pa.  St.  352;  Drennan's  Appeal,  118 

Ch.    323;    Pepper   v.   Warrington,   4  Pa.  St.  176;   Bartlett  v.  Patton,  33 

Harr.   (Del.)   55.  W.  Va.  71;  5  L.  R.  A.  523. 

21s  Eichelberger's  Estate,  135  Pa.  221  in  Pennsylvania  it  is  held 
St.  160;  Clemens  v.  Heekscher,  185  that  a  gift  of  personalty  to  testa- 
Pa.  St.  476.  tor's    widow    for    life    is    an    abso- 

219  King   V.   Beck,    15    Ohio,   559 ;  lute    gift    if    no    trustee    is    inter- 


687 

LAW     or     WILLS. 


In  many  jurisdictions  another  exception  to  the  general  ru  e 
exists  when  a  life  estate  is  given  to  the  first  taker  with  absolute 
power  to  dispose  of  the  corpus  of  the  property  if  he  sees  fit. 
Such  a  bequest  is  held  to  pass  an  absolute  interest  m  the  prop- 
erty to  the  first  taker.^^^  ^      .  +t, 

A  limited  right  of  disposition  as  to  use  such  part  ol  the 
principal  as  is  necessary  for  the  support  and  maintenance  of 
the  first  taker  does  not  create  an  absolute  interest  in  the 
property  22^  And  in  such  case  if  the  first  taker  wastes  the 
corpus  of  the  property  or  appropriates  it  unreasonably  he 
may  be  restrained  by  a  court  of  equity  upon  complaint  of  the 
next  taker.^^'* 

§597.     Life  interests  in  personalty.— How  created. 

A  life  Interest  in  personalty  may,  in  most  cases,  be  created 
by  any  form  of  words  which  expresses  testator's  intent  to  create 
such  interest.  Thus,  after  an  absolute  and  unqualified  bequest 
of  personal  property,  a  subsequent  clause,  showing  testator  s 
intent  to  pass  but  a  life  interest,  will  limit  and  qualify  the 

absolute  gift."-^  ,^       .  ,, 

The  intention  of  tf^stator  to  cut  down  a  gift  of  personalty 
from  an  absolute  estate  to  a  life  estate  must  be  manifest  by 
clear  and  unmistakable  language.  And  such  intention  can  not 
be  inferred  from  the  fact  that  the  interest  was  to  be  a  life 
interest  in  certv-ri  contingencies  which  did  not  exist;        nor 

posed.     Drennan'.   Appeal,   118   Pa.  350;    Tyson's    Estate,    191    Pa^    St. 

St.  176.     But  vhere  the  fund  given  218;   Gross  v.   Strommger,   1.8   Pa. 

is    min"-led    v'^"sonalty    and    realty  St.  64.                                   ^           ,,, 

a  lif"e:tate  Ly  in  both  is  created  -^  Little  v.  Geer,  69   Conn.  411 ; 

even    if    no    trustee    is    interposed.  see  Sec.  598. 

Kane's  Estate,  185  Pa.  St.  544.  -^  Smith   v.    Bell     6    Pet    U.    S. 

L.Kni^^ht   V.   Knight,    162   Mass.  68;    Hamlin   v.    United    States    Ex- 

,,     ,      .          1     no   Pr,     <^t  nress    Co      107    111.    443:    Peirsol    v. 

460;  Markley's  Appeal,  118  Pa.  bt.  press   v.o.,    i                            Ppi-hard's 

176-     Gold's    Estate,    133    Pa.    St.  Roop,  56  N.  J.  Eq    739     Geihard  s 

;    Heppenstall's  Estate,   144  Pa.  Estate,    160    Pa.    St.    253;     Byer  s 

St     059-      Meacbam    v.     Graham,     98  Estate,  186  Pa   St.,  404. 

?e.n   190;  39  S.  W.  12.  "^^  Wellford   v.    Snyder,    13.    U.  S. 

1^3  Godsbalk   v.   Abbey,   109   Mich.  521. 


688  LAW    OF    WILLS. 

can  such  intention  be  inferred  from  an  attempt  to  direct  the 
methods  in  which  the  beneficiary  shall  use  the  same  in  his  life- 
time,^-'^  or  shall  dispose  of  the  same  at  his  death  ;^^*  nor  from 
a  provision  reducing  the  interest  in  other  chattel  property 
to  a  life  interest.^^^ 

A  life  estate  may  be  created  by  specific  direction  that  the 
interest  shall  exist  for  life  only;  as  for  example,  the  in- 
come of  a  certain  fund  is  to  pass  to  one  for  his  natural 
life.^^°  And  this  direction  may  be  implied  from  a  direction 
to  trustees  to  pay  "the  income  only"  to  a  certain  person.^^^ 

A  life  estate  in  personal  property  may  also  be  created  by  a 
gift  of  personal  property  which,  expressly  stated  to  be  for  life 
or  not,  gives  the  principal,  on  the  death  of  the  first  taker,  to 
other  beneficiaries  named.  In  order  to  give  effect  to  every 
part  of  such  a  bequest,  the  interest  of  the  first  taker  is  con- 
strued as  a  life  interest  only.^^^  Thus,  a  bequest  of  one-third 
of  the  income  of  a  fund  to  testator's  widow  for  life  and  two- 
thirds  to  the  children  for  life,  with  the  provision  tliat  upon  the 
death  of  the  widow  her  share  of  the  income  shall  be  pay- 
able to  the  children  pro  rata,  and  that,  in  the  case  of  any  child 
dying  leaving  issue,  the  corpus  of  the  fund  representing  hia 
share  of  the  income  should  go  to  such  issue,  was  held  to  pass 
a  life  estate  only  in  the  first  taker.^^^ 

227  Holt  V.   Holt,   114  N.   C.   241.  v.  Hollyday,  74  Md.  458;  Robinson 

228Rozell    V.    Thomas,    Tenn.    Ch.  v.    Finch,    116    Mich.    180-;    Peirsol 

App.    (1896);    39    S.    W.    350.  v.   Roop,   56  N.  J.   Eq.   739;    Brom- 

229  Waring  v.  Bosher,  91  Va.  286.  bacher    v.    Berking,    56    N.    J.    Eq. 

230  Chubbock  v.  Murray,  30  N.  S.  251 ;  Hooker  v.  Montague,  123  N. 
23;  Thieme  v.  Zumpe,  152  Ind.  C.  154;  Howland  v.  Clendenin,  134 
359;  Nevin's  Estate,  192  Pa.  St.  N.  Y.  305;  Noble's  Estate,  182  Pa. 
258 ;    Ritter's    Estate,    148    Pa.    St.  St.  188 ;  Neeley's  Estate,  155  Pa.  St. 


577.  133 

231  Winn    V.    Bartlett,    167    Mass.  253 
295.  404 

232  Gross  V.  Sheeler,  7  Houst.  Del.  517 


Gerhard's  Estate,   160  Pa.   St. 

Byers's    Estate,    186    Pa.    St. 

Tingley   v.    Harris,    20    R.    I. 
Covar  V.  Cantelou,  25  S.  C.  35. 


280;      34     Atl.     812;     Holcomb     v.  233  Brombacher  v.  Berking,  56  N. 

Wright,   5   App.   D.   C.   76;    Nading  .T.   Eq.  251:   Howland  v.  Clendenin, 

V.    Elliott,    137    Tnd.    261;    Bedford  134  N.  Y.  305. 
V.   Bedford,   99   Ky.   273;    Hollyday 


LAW    OF    WILLS.  689 

§598.     Life  interests  in  personalty — Protection  of  remainder- 


man. 


Where  personal  property  is  bequeathed  to  one  for  life  only 
with  remainder  over,  it  sometimes  becomes  an  important  ques- 
tion whether  the  first  taker  is  entitled  to  the  possession  and 
control  of  the  corpus  of  the  property,  and,  if  so,  whether  the 
first  taker  must  give  bond  for  the  repayment  of  the  same  at 
the  expiration  of  the  life  estate. 

Where  the  property  is  bequeathed  in  this  way  in  trust,  the 
first  taker  has  no  right  to  the  possession  of  the  corpus  of  the 

property.-^'* 

Where  the  property  is  given  for  life,  and  no  trust  is  created, 
the  beneficiary  has  a  right  to  the  possession  of  the  corpus  of 
the  property  without  the  intervention  of  a  trustee.^^^ 

Where  a  trustee  is  appointed  by  will  during  the  minority 
of  the  life  tenant,  the  tenant  is  entitled  to  the  possession  of 
the  property  on  coming  of  age.^"*' 

Where  personal  property  is  given  one  for  life,  without 
the  inteiwention  of  a  trustee,  it  is  held  in  some  jurisdic- 
tions that  the  life  tenant  may  be  required,  if  he  wishes  to 
assume  possession  of  the  corpus  of  the  property,  to  give  bond 
for  its  safe  keeping  and  repayment--^^"^ 

In  other  jurisdictions  it  is  held  that  the  life  tenant  is  en- 
titled to  the  possession  of  the  personal  property  without  giv- 
ing any  bond  for  the  repayment  of  the  same,  unless  some 
special  showing  is  made  which  will  induce  the  court  in  its 
discretion  to  require  such.^^s     j^  ^ew  Jersey  it  seems  to  be 

234LaBar's    Estate,    181    Pa.    St.  McDougall,     141    N.    Y.    21;     Meis 

1;    Reynold's    Estate,    175    Pa.    St.  v.   Meis,   —    (N.   J.   Eq.)    —   1896; 

257.  35    Atl.    369.       (So    by    statute,    to 

235  Fox  V.  Senter,  83  Me.  295;  protect  contingent  interests.)  Al- 
Kuykendall    v.    Devecmon,    78    Md.  len  v.   Boomer,   82   Wis.   364. 

537  ;    White    v.    Massachusetts     In-  238  Hunter  v.  Green,  22  Ala.  329 ; 

stitute    of    Technology,    171    Mass.  Lynde   v.    Estabrook,    7    Allen,    68; 

84  ■  Henderson  V.  Kinard,  29  S.  Car.  Bethea    v.    Bethea,    116    Ala.    265; 

15 '  Garrity's     Estate,     108     Cal.     463; 

236  Kuykendall  v.  Devecmon,  78  Godwin  v.  Watford,  107  N.  Car. 
]y[(j    537  168;    Weeks    v.    Jewett,    45    N.    H. 

237  Pendleton  v.  Kinney,  65  Conn.  540 ;  Hitchcock  v.  Peaslee,  145  N.  Y. 
222;  Little  v.  Geer,  69  Conn.  411;  547:  Martin  v.  Martin,  69  Miss. 
Fuller  V.  Fuller,  84  Me.  475;  In  re  315;  Bierce  v.  Bierce,  41  O.  S.  241; 


690 


LAW    OF    WILLS. 


held  that  at  his  option  the  executor  may  surrender  the  per- 
sonalty to  the  life  tenant  without  bond,^^^  or  may  exact  bond.^^** 

Where  life  tenant  has  power  to  dispose  of  the  corpus  as  he 
sees  fit,  his  right  to  the  possession  of  the  property  without 
giving  bond  is  generally  recognized.^^-^ 

Under  the  Connecticut  statutes,  bond  in  this  case  is  held  nee- 
essary.^^^ 


Posegate  v.  South,  46  O.  S.  391; 
Lapham  v.  Martin,  33  O.  S.  99; 
Martin  v.  Lapham,  38  O.  S.  538; 
RatliflF  V.  Warner,  32  0.  S.  334. 

This  doctrine  has  been  applied 
even  where  the  life-tenant  is  a  non- 
resident and  is  financially  irrespon- 
sible, it  being  held  that  security 
can  be  required  only  upon  a  show- 
ing that  the  life  tenant  intends  to 
squander  the  corpvs.  Martin  v. 
Lapham,    38   O.    S.    538. 


239Rowe   V.   White,    1    C.    E.   Gr. 


411. 


240 /„  re  Ryerson,  11  C.  E.  Gr. 
43. 

241  Langley  v.  Farmington,  G6  N. 
H.  431  :  Posegate  ^\  South,  46  0.  S. 
391. 

242  Security  Company  v.  Pratt, 
65  Conn.'  161. 


LAW     OF    WILLS.  ^^^ 


CHAPTER   XXVI. 

GIFTS  OF   INCOME,  AND   ANNUITIES. 


§599.     Gifts  of  income  in  general. 

Within  the  limits  of  the  rule  against  perpetuities  the  law 
recognizes  the  right  of  the  testator  to  dispose  of  the  income 
of  his  property  by  will,  and  gifts  of  this  sort  are  constantly 
upheld.^  And  where  testator  manifests  a  clear  intention, 
he  may  give  the  income  separate  and  apart  from  the  princi- 
pal, so  that  the  beneficiary  has  no  interest  whatever  in  the 
property  from  which  the  income  is  derived.^ 

The   intention  to  separate  the   income  from   the  principal 

'is  generally  manifested  either  by   creating   an   express   trust 

or  by  limiting  the  interest  to  a  life   interest  in  the  income 

only.^ 

An  absolute  gift  of  income  is  not  diminished  by  subse- 
quent power  to  use  the  principal   if  necessary,^   nor  by  the 

1  Beers    v.    Narramore,    61    Conn.  171   111.   229;   Nelson  v.  Nelson,   57 

13;    Security  Company  v.  Cone,   64  N.  J.  Eq.   118;    36  Atl.  280;   Harb- 

Conn    579;    Pitkin   v.   Peet,   87    lo.  ster's     Estate,     133     Pa.     St.     351; 

268;   Morse  v.  Morrell,  82  Me.  80;  Eichelberger's    Estate,    135    Pa.    St. 

Smith   V.    Greeley,    67    N.    H.    377;  160;  Walker  v.  Gibson,  164  Pa.  St. 

Cain  V.  Hooper   (N.  J.  Ch.).  29  Atl.  512;    Beirne  v.   Beirne,   33   W.   Va. 

327;  7n  re  Fisher,  19  R.  I.  53;  Max-  663. 

well  V.  Sargent,  90  Wis.  3.52.  3  See    oases     cited     in     preceding 

2Mackay  v.Mackay,107  Cal.  303;  note. 

Dehaven  v.   Sherman,   131   111.   115;  -^  Cowles  v.  Henry,  61  Minn.  459. 
6   L.   R.   A.   745;    Bigelow  v.   Cady, 


692  LAW     OF    WILLS. 

fact  that  the  beneficiary  is  given  sufficient  property  for  his 
support  by  other  provisions  of  the  will.^ 

Where  by  arrangement  between  testatrix  and  her  husband 
she  directed  that  the  support  of  certain  children  should  be 
paid  one-half  out  of  her  estate  and  one-half  out  of  that  of 
her  husband's,  it  was  held  that  if  the  husband  should  refuse 
to  pay,  the  entire  support  of  the  children  should  be  paid  out 
of  the  wife's  property,  drawing  upon  the  principal  if  neces- 
sary.^ 

§600.     For  what  time  income  is  payable. 

Within  the  limits  of  the  rule  against  perpetuities,  the  pay- 
ment of  the  income  is  to  extend  for.  as  long  a  period  as  tes- 
tator shall  designate  in  his  will.'^  The  only  question  in- 
volved is  that  of  the  intention  of  testator.  Thus,  a  gift  to  A 
absolutely  for  the  life  of  B,  does  not  terminate  with  A's  death, 
but  the  income  must  be  paid  to  A's  administrator.^ 

A  gift  of  income  to  testator's  grandchildren  until  the 
youngest  comes  of  age  "and  as  long  as  one  or  either  of  them 
shall  live,"  was  held,  in  view  of  the  context  of  the  will,  to 
mean  "or  as  long  as  one  or  either  of  them  shall  live" ;  and  the 
income  was  accordingly  payable  only  till  the  surviving  child 
became  of  age.® 

The  duration  of  the  time  for  paying  the  income  may  be 
otherwise  modified  by  the  context.  Thus  a  gift  of  testator's 
homestead,  furniture,  and  all  his  residuary  property,  to  A 
for  one  year  after  testator's  death,  and  as  much  longer  as 
testator  should  choose  to  stay  and  use  the  same  was  modi- 
fied by  a  subsequent  provision  of  the  will  that  upon  the  set- 
tlement of  the  estate  A  was  to  receive  a  certain  bequest  out 

5  Hills  V.  Putnam,  152  Mass.  123.       more   Presbyterian     Association,    77 

6  Allen   V.   Boomer,   82   Wis.    364.       Md.  50;  Shimer  v.  Shimer,  50  N.  J. 
Tin  re  Holford    (C.  A.)     (1894),       Eq.  300;  McBride's  Estate,  152  Pa. 

3  Ch.  30;  Morris  v.  Bolles,  65  Conn.  St.  192;  Engle's  Estate,  166  Pa.  St. 

45 ;   Angell  v.  Springfield  Home  for  280. 

Aged  \Yomen,   157  Mass.  241;   New  s  Morris   v.    Bolles,    65    Conn.   45. 

England  Trust  Company    v.  Pitkin.  9  Shimer  v.  Shimer,  50  N.  J.  Eq. 

103    Mass.    506;    Backus    v.    Balti-  300. 


LAW    OF    WILLS.  "^^ 

of  the  residuary  clause,  so  that  the  right  to  use  the  residuary 
property  uuder  the  first  clause  was  held  to  last  only  till 
the  estate  was  settled.^  "^ 

Where  testator  had  provided  for  the  investment  of  his  prop- 
erty so  as  to  produce  an  income,  and  then  provided  for  the 
payment  "out  of  said  net  income  'of  the  sum  of  $260  to  my 
father  for  the  term  of  his  natural  life,"  it  was  held  to  mean 
an  annual  payment.^  ^ 

§601.     Time  from  which  income  is  to  be  estimated. 

Where  the  income  given  to  beneficiary  arises  from  cer- 
tain securities,  the  income  or  dividends  upon  which  are  not 
collected  by  the  trustees  or  executors  until  some  time  after 
testator's  decease,  the  question  arises  whether  the  income 
should  be  estimated  from  testator's  death  or  from  the  time 
that  the  dividends  or  interest  is  received  by  the  executor.  This 
is  entirely  a  question  of  testator's  intention.  Where  he  abso- 
lutely gives  the  beneficiary  a  given  income  and  merely  indi- 
cates in  his  will  the  source  from  which  it  is  to  be  obtained, 
the  general  rule  is  that  the  income  in  such  cases  is  to  be  es- 
timated from  the  death  of  testator,  enough  of  the  capital,  if 
necessary,  being  retained  to  pay  the  income  during  the  period 
in  whicii  the  fund  is  non-productive.^^  xhis  rule  holds  good 
even  where  the  first  payment  is  to  be  made  only  when  ''suflicient 
funds  for  that  purpose  shall  come"  into  the  hands  of  the  trus- 

tee.i^ 

But  where  the  bequest  is  only  of  the  income  to  be  obtained 
from  a  certain  specified  fund,  for  instance,  one  to  be  raised  by 
converting  realty  into  money,  it  is  held  that  the  beneficiary  can 
receive  only  the  actual  income  when  received  from  such  fund.^"* 

10  Angell  V.  Springfield  Home  for  i*  Hite  v,   Hite,    93   Ky.   257 ;    40 

Aged  Women,  157  Mass.  241.  Am.  St.  Rep.  189;   19  L.  R.  A.  173. 

n  Jenkins     v.     Guaranty     Trust  This  is  only  a  special  application  of 

Company,  53  N.  J.  Eq.  194;  30  Atl.  the  question  whether  the  gift  is  lim- 

33^^  ited  to  the  income  of  the  fund,  or  in- 

12  Griggs  V.  Veghte,  47  N.  J.  Eq.  eluded  the  right  to  use  the  princi- 
179;  Stanfield's  Estate,  135  N.  Y.  pal  if  necessary  to  the  comfort 
292.  of    the    life-tenant.      See    Sec.    607. 

13  Crew  V.  Pratt,  119  Cal.  131. 


Ii94  LAW     OF     WILLS. 

ii602.     Rules  for  ascertaining  income. 

A  gift  of  the  income  generally  means  a  gift  of  the  net  in- 
come aft^r  deducting  taxes  and  other  expenses  necessary  to 
the  preservation  of  the  property  from  which  the  income  is 
derived.^ ^  The  testator  can,  of  course,  charge  the  expenses 
upon  some  other  fund,  giving  a  named  beneficiary  the  gross 
income  i^*^  and  in  such  case  if  the  estate  is  to  be  distributed 
before  the  life  estate  terminates,  suthcient  propeity  should 
be  retained  to  pay  the  taxes  and  other  expenses  during  the 
continuance  of  the  life  estate.^" 

So  where  the  education  of  minors  is  charged  upon  testator's 
estate,  the  estate  may  be  distributed  upon  withholding  a  sum 
adequate   for  such   education.^  ^ 

The  intention  of  testator  to  give  to  the  beneficiary  the  en- 
tire income  of  a  given  fund  must  be  given  full  effect.  Thus 
where  testator  directed  that  the  fund  be  so  invested  as  to 
produce  •4'^.  giving  authority  to  trustees  to  retain  any  secur- 
ities they  might  see  fit,  without  converting  them,  and  the  trus- 
tees retained  some  securities  which  paid  6%,  it  was  held  that 
the  beneficiaries  were  entitled  to  the  entire  income,  and  not 
merely  of  4/c  upon  the  par  value  of  the  securities.-^ ^ 

But  a  direction  to  invest  a  fund  so  as  to  produce  a  certain 
net  income  can  not  impose  upon  trustee  the  duty  of  paying 
taxe^  out  of  his  own  means.-*^ 

WTiere  testator  bequeathed  one-half  of  the  gross  income  of 
certain  property  to  his  widow  and  the  other  half  to  the  heir, 
charged  with  taxes  and  current  expenses,  it  was  held  that  if 
the  taxes  and  expenses  exceeded  the  heirs's  part  of  the  incom.e 
they  must  be  charged  upon  that  given  to  the  widow.-^ 

15  Duke     of    Cleaveland's     Estate  i  •  Wordin's  Estate.  64  Conn.  40  • 

11894  1  Ch.   164)  :   Heard  v.  Read.  hi  re  Fisher.  19  R.  I.  53. 

169    Mass.    216:    Morse    v.    Monell.  is  XefT    v.    Xeff.    3    Weekly    Law 

82  Me.  80:   Dickinson  v.  Henderson  Gaz.  67. 

(Mich.)     (1900),    81    X.    W.    583:  ^^In    re    Thomas    (1891),    3    Ch. 

Dewey's    Estate,     153     X.     Y.     63:  4S2. 

Bo^jrs  V.  Taylor,  29  O.  S.   172.  20  Thiebaud     v.     Tait,     —     Ind. 

18  Wordin's  Estate.  64  Cona.  40 :  (  1894 )    36  X.   E.   525. 

Woodward  v.  .James.  115  X.  Y.  346:  21  Woodward    v.    Jaones,    115    X. 

Starr   v.   Starr.    132   X.   Y.    1.54.  Y.  .346. 


LAW     OF     WILLS.  695 

A  bequest  of  an  income  from  a  certain  business  carries 
with  it  the  profits  arising  from  the  sale  of  property  dedicated 
to  such  business  before  testator's  death,  or  entitles  beneficiary 
to  the  benefit  of  the  consumption  of  such  property,  where  it 
is   property   which    is   consumed   in   using.^^ 

So  a  gift  of  the  income  of  testator's  estate  for  life  carries 
with  it  the  profits  of  a  partnership  in  which  funds  of  the  es- 
tate were  to  be  invested.^" 

The  appreciation  or  depreciation  of  securities  in  which  the 
funds  are  invested  is  usually  held  to  be  a  risk  which  must  be 
borne  by  the  parties  entitled  to  the  securities  subject  to  the 
rights  of  the  beneficiary  to  receive  the  income  for  a  certain 
time.^^ 

Where  the  income  of  a  specific  fund  of  $5,000  was  be- 
queathed to  A  for  life  and  it  was  provided  that  on  A's  death 
"the  five  thousand  dollars  of  which  A  receives  the  interest" 
for  life  should  go  to  B,  it  was  held  that  B  took  the  fund  as 
invested  and  hence  any  appreciation  in  the  value  of  the  in- 
vestment enured  to  B's  benefit.^^ 

So  where  executors  invest  in  bonds  at  the  premium,  they 
can  not  retain  the  income  in  order  to  make  the  premium  pay 
for  such  bonds.^^ 

But  in  some  states  it  is  held  that  profit  arising  from  a 
change  of  form  of  investment  must  be  apportioned  where  by 
reason  of  such  change  there  has  been  a  loss  or  diminution  of 
income.  Thus  where  the  fund  is  invested  in  a  mortgage  upon 
which  a  foreclosure  suit  is  brought,  it  has  been  held  that  any 
profit  thus  made  should  be  apportioned  between  life  tenant 
and   remainderman   in  the  proportion  that  the   principal   in- 

22  Allen's  Succession,  48  La.  Ann.  Am.  St.  Rep.  189 ;  19  L.  R.  A. 
1036.  (A  gift  of  the  income  of  17.3:  Monson  v.  New  York  Security 
a  sugar  plantation  gave  legatee  the  &  Trust  Company,  140  X.  Y.  498 ; 
right  to  have  coal  which  was  stored  Boyer's  Estate,  174  Pa.  St.  16. 
upon  the  plantation  for  use  in  mak-  23  Boyer's  Estate,  174  Pa.  St.  16. 
ing  sugar,  used  in  such  business  26  mte  v.  Hite,  9.3  Ky.  257.  But 
without  paying  the  estate  its  val-  where  executors  have  by  mistake 
ue. )  paid    the   entire    income   of    certain 

23  Buckingham    v.    Morrison.    130  property  to  A  instead  of  only  pay- 
Ill.  437.  ing  the  balance  thereof  after  deduct- 

21  Hite   v.   Hite,   93   Kv.   257 :    40       ing  some  annuities,  it  is  held  that 


696 


TA.W    OF    WILLS. 


vested  bears  to  the  arrearages  of  interest.^'  The  same  rule 
is  said  to  apply  if  there  is  a  deficiency.-^ 

But  where  the  fund  is  invested  in  more  than  one  security, 
it  is  held  that  profit  on  one  security  should  be  set  off  against 
loss  on  another,  and  may  be  withheld  for  that  purpose.^^ 

Where  the  realty,  the  income  of  which  is  bequeathed,  is 
operated  for  oil,  the  oil  is  income  and  belongs  absolutely  to 
the  life  tenant.^^ 

Courts  are  decidedly  at  variance  upon  the  question  whether 
stock  dividends  are  to  be  treated  as  income  or  capitaL  In 
some  states  they  are  treated  as  merely  another  form  of  cap- 
ital of  the  corporation  ;  and  hence  the  income  only  goes  to  the 
life  tenant,  and  the  stock  issued  as  a  dividend  goes  to  the 
remainderman  irrespective  of  when  the  dividend  is  earned. ^^ 

Where,  instead  of  issuing  a  stock  dividend  the  right  is 
given  to  stockholders  to  subscribe  for  the  new  stock  at  a  cer- 
tain figure,  and  this  right  is  a  valuable  one  which  may  be  sold, 
it  is  held  that  if  the  new  issue  of  stock  will  increase  the  cap- 
ital stock  of  the  corporation  in  which  the  stock  is  held,  and 
thereby  diminishes  the  par  value  of  each  share,  the  value  of 


executors  may  retain  sufficient  in- 
come to  replace  the  amount  thus 
erroneously  paid  to  the  wrong  bene- 
ficiary. Hammond  v.  Hammond,  169 
Mass.  82. 

27  Parker  v.  Seeley,  56  N.  J.  Eq. 
110. 

28Hagan  v.  Piatt,  48  N.  J.  Eq. 
206;  Tuttle's  Case,  49  N.  J.  Eq. 
259. 

29  Parker  v.  Johnson,  37  N.  J. 
Eq.  366. 

soWoodburn's  Estate,  138  Pa.  St. 
606. 

It  is  held,  however,  that  where 
the  realty  covered  by  one  oil-lease 
is  devised  in  severalty  and  the  lease 
is  held  to  pass  to  such  devisees 
in  common,  the  devisee  of  a  portion 
of  the  land  is  entitled  to  have  the 
damage    done    to    the    rental    value 


of  his  realty  for  ordinary  purposes 
deducted  from  the  royalties  paid 
by  the  lessees  under  the  oil-lease 
before  such  royalties  are  distrib- 
uted among  the  devisees ;  but  the 
cost  of  repairing  the  permanent  in- 
juries to  the  freehold  should  be 
postponed  until  the  termination  of 
the  lease.  Wettengel  v.  Gormlty, 
184  Pa.  St.  354,  following  the  pre- 
vious holding  in  the  same  case  in 
160  Pa.  St.  559.  In  Ohio,  on  the 
other  hand,  royalties  for  the  min- 
ing of  coal  are  held  to  be  principal. 
Brooks  V.  Hanna,  19  Ohio  C.  C. 
216. 

31  Minot  V.  Paine.  99  Mass.  101 ; 
Mills  V.  Britton,  64  Conn.  4;  In  re 
Brown,  14  R.  I.  371;  Greene  v. 
Smith,  17  R.  I.  28. 


LAW    OF    WILLS.  ^'^^ 


32 


this  right  to  subscribe  for  stock  must  be  charged  as  capital^ 
But  where  the  right  is  given  to  the  stockholders  of  one  com- 
pany to  subscribe  for  stock  in  another  company,  and  the  in- 
crease of  the  capital  stock  of  the  second  company  does  not 
decrease  the  value  of  the  stock  of  the  first,  it  is  held  that 
such  right,  even  when  of  money  value,  is  merely  incidental, 
and  is  to  be  classed  as  income,  not  as  principal.^^  In  other 
jurisdictions  a  stock  dividend  is  held  to  be  income  like  a 
cash  dividend.^"* 

When  the  trust  fund  is  invested  in  stocks,  cash  dividends 
are  usually  held  to  be  income,  whether  ordinary  dividends  or 
special  distributions.^-^  Some  courts,  however,  attempt  to  ap- 
portion the  dividend,  holding  the  part  of  it  earned  before  tes- 
tator's death  to  be  principal  and  the  part  earned  subsequently 
to  be  income.2^  j^  other  jurisdictions  an  attempt  is  made  to 
apportion  stock  dividends,  giving  the  amount  which  repre- 
sents the  earnings  up  to  testator's  death  to  the  remainder- 
man and  the  rest  to  the  life  tenant.^^ 

A  gift  of  the  net  income  of  certain  realty,  which  was  to  be 
managed  in  connection  with  other  realty,  gives  the  benefi- 
ciary the  gross  income  less  taxes,  and  a  proportionate  share  of 
the  repairs,  wages  of  workingraen  and  salary  of  agent  ne- 
cessary to  keep  up  the  entire  realty.^^ 

Where  executors  were  directed  to  manage  a  plantation  so  as 
to  pay  "taxes  and  other  charges,"  the  rest  of  the  income  to  be 
paid  to  A,  it  was  held  that  the  expenses  incurred  by  testa- 
tor for  the  crop  standing  at  the  time  of  his  death  can  not  be 

32  Eisner's  Estate,  175  Pa.  St.  In  re  James,  14G  N.  Y.  78:  (even 
j^3  when  derived  from   proceeds  of  the 

33  Eisner's    Estate,    175    Pa.     St.       sale  of  real  estate). 

143;  Wiltbank's  Appeal,  64  Pa.  St.  36  Smith's  Estate,  140  Pa.  St.  344. 

25(5  37  Eisner's    Appeal,    17.5    Pa.    St. 

"  slnite  V    Kite,   93   Ky.   257;    40  143;    Smith's    Estate,    140    Pa.    St. 

Am.  St.  189;  19  L.  P.  A.  173.  344;  Pritchitt  v.  Trust  Co.  96  Tenn. 

35Hopkin's  Trusts,  L.  R.   18  Eq.  472. 

696;   Gibbons  v.   Mahon,   136  U.   S.  38  Duke     of     Cleveland's     Estate 

549;   Gilkey  v.  Paine,   SO  Me.   319;  (1894)    1  Ch.  164. 
Rand    v.    Hubl)oll,    115    Mass.    461. 


698  LAW     OF     WJLLS. 

deducted  from  the  price  of  such  crop,  but  the  price  received 
less  taxes  and  expenses,  after  testator's  death  must  be  paid  to 

Assessments  for  sewers  and  street  paving  must  be  deducted 
from  the  income  under  a  will  providing  that  ''all  reasonable 
repairs  and  improvements"  shall  be  deducted  from  the  in- 
come.'*°  But  where  "taxes"  were  made  payable  out  of  the  in- 
come given  to  life  tenant,  it  was  held  that  sewer  assessments 
could  not  be  deducted  from  such  income.'*^ 

A  direction  to  pay  over  the  income  of  certain  stock  after 
first  paying  the  debts  and  funeral  expenses,  does  not  charge 
such  income  with  the  commissions  of  executor  and  the  costs 
of  administration  in  addition.^^ 

§603.     Gift  of  income  charged  with  support  of  others. 

A  gift  of  the  income  of  a  fund  to  A  for  "his  use  and  bene- 
fit, and  for  the  maintenance  and  education"  of  other  persons 
named,  or  any  similar  form  of  expression,  is  generally  held 
to  give  to  A  the  income  of  the  fund  for  life,  but  charged,  how- 
ever, with  the  duty  of  supporting  and  educating  the  persons 
designated."*^  In  such  a  case  A  may  sell  his  interest  in  the 
property  devised,  subject  to  the  liability  to  support  the  other 
beneficiaries.^^ 

Whether  the  court  will  inquire,  in  litigation,  after  the  time 
which  the  beneficiaries  are  to  be  supported  has  expired,  into 
the  question  of  the  sufficiency  and  adequacy  of  their  support,  is 
a  question  upon  which  the  courts  are  not  harmonious.'*^ 

39  Allen's  Succession,  49  La.  Ann.  **  Dixon  v.  Bentley,  50  N.  J.  Eq. 
1096.  4S6. 

40  Warren  v.  Warren,  148  111.  45  Forbes  v.  Darling,  94  Mich.  021. 
641.  (In   this   case    it   was   held   that, 

41  Chambers  v.  Chambers,  20  K.  after  the  trust  had  been  fully  per- 
I.  370.  formed,    no    inquiry    would    be    per- 

4^  Nash    V.    Obei-,    2    App.    D.    C.  mitted  into  the  sufficiency  and  ade- 

304 :   22  Wash.  L.  Rep.  92.  quacy  of  the  maintenance  and  edu- 

43  7n  re  Booth    (1894)   2  Ch.  282;  cation   where   there   was   some   sort 

Hurd    V.    Shelton.    04    Conn.    496;  of  maintenance   and   education   giv- 

Griffin  v.  Griffin    (Ky.)     (1893),  21  en.) 

S.    W.    38 :    Dixon    v.    Bentley,    50  New   England  Mortgage   Security 

N.  J.   Eq.  486.  Co.     v.     Buice,     98     Ga.     795.       In 


LAW    OF    WILLS.  699 

§604.     Beneficiaries. 

A  gift  to  be  expended  for  the  benefit  of  the  family  of  a  des- 
ignated person  does  not  ordinarily  give  him  the  right  to  con- 
trol such  income  as  his  own  property.-*"  And  unless  such 
gift  specifically  excludes  adult  members  of  the  family,  they 
have  a  right  to  support  out  of  the  income.'*^ 

On  the  other  hand  a  gift  to  testator's  widow  and  chidren 
for  support,  gives  the  wife  a  right  to  support  from  the  in- 
come as  well  as  the  children. 

A  gift  of  income  to  support  testator's  family  at  the  home- 
stead' is  ordinarily  held  to  terminate  when  the  family  sepa- 
rate, and  is  not  revived  by  the  fact  that  some  of  the  members, 
years  after,  live  at  the  homestead  once  more.^® 

The  direction  to  support  the  beneficiary  may  be  condi- 
tioned on  beneficiary's  receiving  the  support  at  the  designated 
place.^^  But  such  a  condition  is  not  to  be  inferred  from  an 
expression  of  the  wish  of  testator  that,  if  agreeable  to  all 
concerned,  his  parents  and  sisters  were  to  live  with  his  family 
after  his  death.^^ 

Under  rather  peculiar  circumstances,  a  provision  that  tes- 
tator's aged  and  invalid  sister  and  her  daughter,  who  was  act- 
ing as  her  nurse,  should  have  a  home  in  testator's  house,  and 
that  the  executors  should  attend  to  it,  was  held  to  imply  a 

this     case    the     court      held      that  lows  Leach  v.  Leach,  13  Sim.  304; 

the  interest  in  remainder  vested  in  Browne   v.   Paull,   1    Sim.    (N.   S.), 

the  children  subject  to  be  divested  92;    Scott  v.  Key,   35   Beav.  29L 

on    their     receiving    support     from  46  Brooks    v.    Raynolds,    59    Fed. 

their      mother;      subsequently      the  Rep.  923 :  Gaston  v.  Brokaw   (N.  J. 

nother  deeded  the  property,  and,  in  Ch.)    (1893),  26  Atl.  90G. 

determining  whether   the   entire  in-  ^t  Barlow    v.    Barnard,    51    N.    J. 

terest  passed,  or  whether  the  vested  Eq.    G20. 

interest    of    the    children    still    re-  *«  Sheffield   v.   Parker,    158    Mass. 

maincd.  it  was  held  that  the  court  330. 

might    enquire    into    the    sufficiency  49  Hopkins  v.   Coleson,   158   Mass. 

and   adequacy  of   support  and   edu-  407;    (support  to  be  furnished  at  an 

cation    furnished,    in    order    to    de-  old  ladies'  home), 

termine  whether  the  will  had  been  so  Ward   v.    Ward,    95    Ala.    331 ; 

complied  with   or   not).     Forbes  y.  10  So.  832;  Tope  v.  Tope,  18  Ohio, 

Darling,  94  Mich.  621  cites  and  fol-  520. 


700  LAW     OF     WILLS, 

direction  to  furnish  at  least  the  absolute  necessities  of  life^ 
including  food  and  fire-wood  but  not  clothing.^^ 

A  gift  of  income  for  the  support  and  education  of  testator's 
children,  or  testator's  family,  or  some  similar  expression,  is 
ordinarily  construed  as  a  direction  to  keep  the  income  to- 
gether in  one  fund,  out  of  which  the  family  is  to  be  supported 
and  educated,  unless  a  contrary  intention  clearly  appears.^^ 

§605.     Whether  income  or  support  passes. 

One  of  the  interesting  questions  presented  by  gifts  of  in- 
come for  support  is  whether  the  entire  income  of  the  fund 
passes,  or  only  so  much  thereof  as  is  sufficient  for  the  sup- 
port of  the  life  tenant.  This  question  becomes  very  impor- 
tant when  there  is  a  considerable  excess  of  income  over  ex- 
penditure, and  the  question  is  presented  whether  it  goes  to 
the  life  tenant  or  passes  as  property  of  the  testator.  The 
general  rule  upon  this  subject  is  that,  if  the  income  is  given 
absolutely,  the  fact  that  the  purpose  for  which  it  was  given 
is  expressed  as  for  the  support  and  maintenance  of  testator's 
family  does  not  cut  down  the  gift  of  the  entire  income.^^ 
But  where  the  gift  is  not  of  the  income  absolutely,  but  simply 
a  gift  of  support  and  maintenance,  or  a  gift  of  so  much  of 
the  income  as  may  be  necessary  for  the  support  and  mainte- 
nance, the  beneficiaries  have  a  right  only  to  a  reasonable  and 

51 //i,  re  Denfield,   156  Mass.  265,  Jones,  45  S.  C.  102;   22  S.  E.  748; 

citing    Gibson    v.    Taylor,    6    Gray  (this   construction   is   especially   fa- 

310;  Willett  v.  Carroll,  13  Md.  459.  vored  when  the  income  is  adequate 

Contra,  Nelson  v.  IMelson,  19  Ohio,  for    the    support   of   the   family   as 

282.  a  unit,  but  not  for  the  support  of 

(In  this   case,   however,   the   pro-  the  respective  members, 

vision   was    that    the    daughters    of  53  See    cases    cited    in    preceding 

testator  should  have  a  "home"  upon  note.      A   gift   of   the   income   of   a 

the   farm  devised  to  his   son   while  trust   fund   or   so   much    thereof   as 

they    were    unmajried,    and    it    ap-  might  be  necessary  to  support  and 

peared  that  the  value  of  the  support,  educate  A  till   she  reached  the  age 

if    the    provision    included    support  of   18,  when  the  net  income  was  to 

and  maintenance,  was  greater  than  to    be    paid    to    her,    was    held    to 

the  income   from   the  farm.)  pass  the  accumulated  income  during 

52  Bunch  V.Ray   (Ky.) ,  49  S.  W.  minority.      Burt    v.    Gill,    89    Md. 

3.36:    20   Ky.   L.   P.    1.373:    Gates  v.  145. 
Pond.    12    O.    C.    C.    50:    Beard    v. 


LAW     OF     WILLS. 


701 


proper  support  out  of  the  income,  and  the  accumulations,  if 
any,  belong  to  testator's  estate.^^  Under  such  a  gift  of  sup- 
port the  beneficiary  has  a  right  to  the  support  and  mainte- 
nance given  even  though  he  may  be  able  ordinarily  to  sup- 
port himself  and  even  to  save  money.^^  An  amount  paid  for 
support  may  be  increased  when,  under  change  of  circum- 
stances, extra  care  and  attention  is  necessary.^^ 

When  a  life  tenant  does  not  expend  the  entire  income  of 
the  estate  in  which  he  has  an  interest,  a  question  is  pre- 
sented as  to  the  proper  disposition  to  make  of  such  accumula- 
tion at  his  death.  If  he  has  a  life  estate,  it  was  held  that  the 
income  was  his  absolutely,  and  that  any  accumulations  are 
the  property  of  the  life  tenant,  and  at  his  death  are  to  be 
distributed  as  part  of  his  estate.^'^  If,  however,  the  first 
tenant  has  not  a  life  estate,  but  is  merely  given  a  proper  and 
suitable  maintenance  and  support  out  of  the  estate  for  his 
life,  the  life  tenant  only  has  a  right  to  so  much  of  the  income 
of  the  estate  as  is  reasonably  necessary  and  proper  for  his 
support,  and  the  accumulations  will  pass  either  under  a  re- 
siduary clause  or  as  property  not  disposed  of  by,  will.^^  And 


54  Fearson  v.  Dunlop,  21  D.  C.  her  determines  her  right  to  sup- 
236;  (a  gift  of  income  for  support,  port  as  long  as  such  facts  Con- 
or so  much  thereof  as  should  be  tinue.  Taylor  v.  Elder,  39  O.  S. 
needed).      Brunson   v.    Martin,    152  535. 

Ind.    Ill;    Thome   v.    Allen    (Ky.),  56  Schubart's  Estate,   154  Pa.   St. 
49    S.    W.     10G8;     So.    Ky.    L.    R.  230;    (in  this  case  a  stroke  of  par- 
1728;     Wentworth    v.    Fernald,    92  alyisis    greatly    increased    the    care 
Me.    282;    McKnight   v.    Walsh,    24  and  trouble  necessary  to  take  care 
N.  J.  Eq.  498;   Cox  v.  Wills,  49  N.  of  the  beneficiary. 
J.   Eq.   573.     Thus  a  gift  to  testa-           st  Eldred  v.  Shaw,  112  Mich.  237; 
tor's  wife  for  life  of  the  "use  and  Swartz  v.  Gehring,  7  O.  C.  C.  426 ; 
maintenance"      of      certain     realty,  2    0.    D.    328;     (in    this    case    the 
gives   her   only   a   right   to   support  will    gave   the   life-tenant   "the   use 
out   of   such   property.      Jackson   v.  of  all   my  real   and   personal   prop- 
Jackson,  56  S.  Car.  346;   Esman  v.  erty  during  her  life"). 
Esman',     18    Ohio    C.    C.    603;     10           58  Little   v.   Geer,    69   Conn.   411 
Ohio  C.  D.  257.  Wentworth  v.  Fernald,  92  Me.  282 

55Holden    v.    Strong,    116    N.    Y.  Brady     v.     Brady,     78     Md.     461 

471.  Sehehr     v.     Look,      84     Mich     263 

Contra,    that    if   beneficiary   is   a  Bramell     v.     Cole,     136     Mo.     201 

woman,  her  marriage  at  least  to  one  Steinmetz's  Estate,  168  Pa.  St.  171 
who    is    financially    able   to    support 


702  LAW     OF     WILLS. 

under  such  a  devise  the  devisee  is  not  ordinarily  entitled  to 
the  possession  and  control  of  the  property  devised  unless  this 
is  especially  given  by  the  will;  but  his  sole  interest  in  ths 
property  consists  in  the  right  to  so  much  of  the  income  as  is 
sufficient   for   his    support   and   maintenance.^^ 

Where  beneficiary  attempts  to  dispose  of  property  by  will, 
and  the  evidence  makes  it  probable  that  the  amount  thus  dis- 
posed of  was  received  by  her  from  sources  other  than  the  gift 
for  her  support,  it  will  be  presumed  that  she  was  disposing 
only  of  property  of  which  she  could  make  disposition.^*^ 

§606.     Apportionment  of  income  at  death  of  beneficiary. 

If  the  beneficiary  dies  between  the  periods  for  the  payment 
of  income,  it  is  now  held  that  the  income  should,  in  such 
case,  be  apportioned,  provided  it  is  an  absolute  gift  of  in- 
come and  not  a  gift  of  support  merely.^^  But  where  testa- 
tor in  his  will  especially  provides  that  the  income  shall  be 
paid  semi-annually  to  such  of  the  beneficiaries  as  shall  be 
living  at  the  time  of  the  payment,  the  income  can  not  be  ap- 
portioned.^^ 

§607.     Annuities  in  general. 

An  annuity  is  a  right  to  the  payment  of  a  specified  sum  of 
money  at  stated  intervals,  usually  annually  or  at  aliquot  parts 
of  a  year.^^ 

One  of  the  chief  points  of  difference  between  a  gift  of  in- 
come and  an  annuity  is,  that  a  gift  of  income  fails  if  the  prin- 
cipal of  the  estate  is  not  sufiicient  on  investment  to  pay  the 
income  bequeathed  f^  while  an  annuity  does  not  fail  be- 
cause the  net  income  is  insufficient  to  pay  it  in  full,  but  is 

59  Brady   v.   Brady,   78   Md.   461;  Hemenway  v.  Hemenway,   171   Mass. 

Schehr  v.   Look,  84  Mich.  263.  52. 

«oMann    v.    Martin,    172    111.    18,  63  Dewey's  Estate,  153  N.  Y.  63; 

affirininf?  69   111.  App.   501.  Kearney  v.   Cruikshank.    117    N.   Y. 

61  Shattuck  V.  Balcom,  170  Mass.  95.  It  need  not  be  paid  annually. 
245;  Brombacher  v.  Berking,  56  N.  Cummings  v.  Cummings,  146  Mass. 
J.    Kq.   251.  r,01;    Pierce's   Estate,   56   Wis.   560. 

62  Nading  V.  Elliott,  137  Ind.  261;  64  Dewey's   Estate,   153   N.  Y.   63. 


70S 

LAW     OF     WILLS.  '" 


payaWe  out  of  the  principaL^^      Thus  where   an   annuity    ls 
given  to  a  beneficiary,  and  testator  directs  his  estate  to  be  30 
invested  as  to  produce  such  annuity,  it  is  held  that  m  case 
the  income  of  the  estate  is  not  sufficient  to  pay  the  annuity 
in  full  the  principal  should  be  used  to  pay  it.««     So  where  a 
testator  directs  that  a  certain  fund  be  so  invested  as  to  produce 
a  given  annuitv,  it  is  held  that  in  case  of  a  deficiency  of  the  in- 
come  from   the   fuod   the   principal   may  be   drawn   upon.^ 
Wliere,  however,  the  annuity  is,  in  specific  terms,  made  pay- 
able out  of  the  income  of  the  estate,  the  deficiency  can  not  be 
made  out  of  the  principal.««     Where  it  is  doubtful  whether 
testator  intended  to  make  a  gift  of  income,  or  to  create  an  an- 
nuity, the  question  is  one  of  his  intention,  to  be  determine'l 
usually  by  finding  from  the  will  whether  the  gift  was  to  be 
paid  out  of  the  principal  in  any  event,  or  only  the  income  01 
the  principal  was  to  pass.''^     Thus  a  gift  of  the  income  of  a 
certain  fund  is  not  an  annuity  ;^«  but  a  gift  of  "the  whole  in- 
terest and  income"  to  a  certain  amount,  with  power  to  draw 
on  the  principal  for  deficiencies,  was  held  to  be  an  annuity. 

§608.     Duration  of  annuities. 

If  testator  specifies  in  his  will  the  time  for  which  such  an- 
nuity is  to  be  paid,  full  effect,  of  course,  is  given  to  such  ex- 
pression of  intention.'^^  _ 

Thus,  where  testator  provides  that  certain  annuities  shall 
be  paid  until  his  estate  is  settled,  such  direction  must  be  fol- 

65Additon  V.  Smith,  83  Me.  551;  HI-  207;    (in  this  case  the  annuity 

Merrit.    v.    Merritt,    48    N.    J.    Eq.  was  payable  out  of  "the  moneys  so 

1;    Whitson   V.   Whitson,   53   N.   Y.  arising  from  the   estate   )^ 

479-     Curran    v.    Green,    18    R.    I.  ^9  Dewey's  Estate,   153  N    \     63. 

'^'  ToEartlett    v.    Slater,    53    Conn. 

e;  Addibon  V.  Smith,  83  Me.  551;  102;     Dewey's    Estate,    153    N     Y. 

Merritt    v.    Merritt,    48    N.    J.    Eq.  63.     (Hence  if  testator  s  estate  does 

1-     Cooper's     Estate,     147     Pa.    St.  not   amount   to   the   sum   indicated, 

322-     Curran    v.    Green,    18    R.    I.  the  income  must  abate  proportion- 


329 


ately. ) 


«;  Boomhower  v.   Babbitt,   67   Vt.  "  Cushing's  Will,  58  Vt    393. 

72  Bates  V.  Barry,   125  Mass.  83; 
^Is  Machray  v.  Higgins,  8  Manito-       Stephens   v.    Milnor,    24    N.    J.    Eq. 
ba,  29;   Einbecker  v.  Einbecker,  162       358. 


704  LAW     OF     WILLS. 

lowed,  although  the  estate  is  held  open  for  the  collection  of 
some  outstanding  claims.'^^  If  testator  does  not  specify  in  his 
will  the  time  for  which  the  annuity  is  to  be  paid,  it  is  then  ^ 
question  of  the  construction  of  the  whole  will  for  the  pur- 
pose of  determining  testator's  intention.  The  weight  of  au 
thority  and  of  sound  reason  is  that,  unless  it  appear  otherwi^st, 
from  the  context,  the  annuity  is  payable  during  the  life  of  the 
beneficiary.'^'* 

But  where  testator  did  not  specify  the  time  for  which  an 
annuity  is  to  last,  but  bequeatlied  a  yearly  income  of  $4,000 
to  his  wife,  to  be  paid  from  his  estate  by  his  executors,  it 
was  held,  in  view  of  the  facts  that  no  trustee  was  appointed 
and  that  the  property  was  valuable  but  unproductive,  that  tes- 
tator intended  the  annuity  to  last  only  during  administra' 
tion.'^^ 

g609.     Apportionment  of  annuities. 

Common  law  and  equity  were  opposed  to  apportionment  oi 
annuities  where  the  annuitant  died  between  the  days  of  pay- 
ment.'^^  An  exception  was  always  made  to  this  rule  in  ju- 
risdictions when  a  widow  who  elected  to  take  in  lieu  of  dower 
was  held  to  be  a  purchaser  for  value,  in  favor  of  annuities 
bequeathed  in  lieu  of  dower. '^'^ 

By  statute  in  most  jurisdictions  correcting  the  arbitrary 
rule  of  equity  and  common  law  an  annuity  is  apportionable 
where  the  annuitant  dies  between  the  days  of  payment.''^* 

A  gift  in  trust,  to  pay  to  the  divorced  wife  of  testator  an 
annuity  is  not  revoked  by  her  obtaining  a  judgment  for  ali- 
monv  for  the  same  amount.^^ 


73  Batchelor's    Estate,    119    Mich.  (Mass.),    194;    39    Am.    Dec.    716: 
239.  Kearney  v.   Cruikshank,   117   N.   Y. 

74  Grove's    Trusts,     5     Jiir.      (N  95. 

S.),  855;   1  Giff.  74;  7  W.  R.  522;  77  Ciishing's   Will,    58    Vt.    393. 

28    L.    J.    Ch.    536;    McDermott    v.  78  Parker  v.  Seeley,  56  N.  J.  Eq. 

Wallace,   5   Beav.   142;    6   ,Tur.   .547.  110. 

75  Cleveland  v.  Cleveland,  89  Tex.  79  Maxwell    v.    Sawyeir,    90    Wis. 
445;  35  S.  W.  145.  352.       (The    alimony    thus    decreed 

76  W'iggin      v.      Swett,      G      Met.  ceased  at  testator's   death.) 


I^W     OF     WILLS. 


101 


CHAPTER  XXVIl. 

TESTAMENTARY  TRUSTS  OTHER  THAN  CHARITABLE. 


§610.     Elements  of  a  trust. 

A  tnist  is  the  general  name  for  all  the  estates  and  prop- 
erty interest  which  are  recognized  and  enforced  by  a  court 
of  equity  but  not  by  a  court  of  law.  In  a  testamentary 
trust,  the  legal  title  of  the  property  devised  or  bequeathed 
passes  to  one  who  is  known  as  the  trustee;  certain 
property  rights  in  the  property  thus  devised  to  a  trustee  are 
given  to  another  who  is  known  as  the  cestui  que  trust.  The 
legal  title  during  the  continuance  and  existence  of  a  trust 
is,   therefore,   separated   from   the   equitable. 

The  ordinary  classification  of  trusts  into  express  and  im- 
plied is  of  comparatively  small  importance  in  the  law  of  wills, 
since,  in  almost  every  case,  it  is  merely  a  question  of  the 
construction  of  testator's  will  and  the  determination  of  his 
intention  thereto.  "In  order  to  constitute  a  valid  trust,  three 
things  must  concur:  words  sufficient  to  raise  it,  a  certain  sub- 
ject and  a  definite  object."  ^  This  propositon,  often  repeated 
in  substantially  the  same  language  as  here  given,  means, 
when  applied  to  testamentary  trusts: 

First,  that  testator  must,  in  his  will,  use  the  language  as 
shows  his  intention  to  pass  the  legal  estate  to  the  trustee  but 

1  Coulson  V.  Alpaugh,  163  111.  298:  Hill  v.  Page,  —  Tenn.  —  (1896)  ; 
Mills    V.    Newberry,    112    111.    123;       36   S.   W.   735. 


706  LAW    OF    WILLS. 

the  equitable  interest  to  the  cestui  que  trust?  Thus  if  tes- 
tator shows  his  intention  that  the  trustee  shall  hold  the  prop- 
erty for  his  own  benefit,  no  trust  is  created;  for  the  legal 
title  must  be  separated  from  the  equitable  interest  in  order 
to  constitute  a  trust.^ 

Second,  except  in  case  of  charitable  trusts,  which  will  be 
discussed  hereafter,^  testator  must,  by  his  will,  indicate  a 
beneficiary  to  whom  the  equitable  interest  is  to  pass  in  terms 
so  definite  and  certain  that  he  can  thereby,  with  the  aid  of 
extrinsic  evidence,  be  identified. 

This  rule  is  not  peculiar  to  testamentary  trustees,  but  ap- 
plies equally  to  the  indentifieation  of  legatees  and  devisees. 
It  finds  a  special  application,  towever,  in  the  law  of  testamen- 
tary trustees,  since  it  is  in  the  attempt  to  create  trusts  that 
testators  most  frequently  fail  to  identify  the  beneficiary 
with  sufficient  certainty.  Except  in  charitable  trusts,  if  it 
is  not  possible,  with  the  aid  of  admissible  extrinsic  evidence, 
to  identify  the  beneficiary  properly,  it  is,  of  course,  impos- 
sible for  a  court  of  equity  to  enforce  the  trust,  and  the  devise 
will,  on  that  account,  be  void.^ 

Third,  the  remaining  necessary  element  of  a  valid  trust 
is  that  the  property  conveyed  by  the  will  must  be  described 
with  such  certainty  as  is  necessary  in  other  bequests;^  and 
furthermore,  that  the  purpose  for  which  the  trust  is  created 
be  set  forth  in  the  will  in  such  clear  and  definite  language 
that  a  court  of  equity  can  enforce  the  wishes  of  the  testator." 

Thus  a  jrift  in  trust  of  "what  remained"  after  a  life  ten- 
ant,  with  power  of  disposition  of  the  fee  to  the  extent  neces- 

2  See   Sees.   611   to   614   inclusive.  199;    People  v.   Powers,   147   N.   Y. 

Hill   V.   Page,   —   Tenn.   —    (1896;  104;   Johnson  v.   Johnson,  92  Tenn. 

36  S.  W.  735.  559;   22  L.  R.  A.   179;    36  Am.  St. 

3/J^   re  Denfield,   156  Mass.   265;  Rep.   104;   Fifield  v.  Van  Wyck,  94 

Rose  V.  Hatch,  125  N.  Y.  427 ;  Hop-  Va.  557. 

kins  V.  Kent,  145  N.  Y.  363;  Mimms  e  (See  Sees.  48  and  822.) 

V.  Macklin,   53   S.  Car.  6.  7  Coulson    v.    Alpaugh,     163     HI. 

4  (See  Sees.  639-655)  298;    Tilden    v.    Green,    130    N.    Y. 

5  Wlieelock  v.  American  Tract  So-  29 ;  14  L.  R.  A. ;  Beurhaus  v. 
ciety,  109  Mich.  141 ;  Tilden  v.  Watertown,  94  Wis.  617 ;  69  N.  W. 
Green,   130  N.  Y.   29;    14  L.  R.  A.  986. 

29:    Fairchild   v.    Edson.   154   N.   Y. 


LAW     OF    WILLS. 


707 


sary  for  her  support  had  exercised  such  power,  is  sufficiently 
definite;^  as  is  a  gift  of  a  sum  for  several  charitable  pur- 
poses which  does  not  apportion  the  amount  to  be  used  for 
each  purpose,   all  being  valid.^ 

If  the  purpose  of  the  will  does  not  appear  with  sufficient 
certainty,  and  it  is  impossible  for  a  court  of  equity  to  deter- 
mine whether  it  is  complying  with  the  will  of  testator  or 
not,  the  trust  will  be  declared  void.^" 

It  might  be  suggested  that  a  fourth  element  to  a  valid 
trust  is  a  competent  trustee.  In  most  cases,  however,  this, 
while  it  may  be  very  desirable,  is  not  essential.  If  the  in- 
tention of  testator  to  create  a  trust  was  present,  and  the  other 
elements  to  a  valid  trust  concur,  and  the  trust  thus  created 
is  not  discretionary  with  the  trustee,  equity  will  not  suffer 
the  trust  to  fail  for  want  of  a  trustee,  but  will  appoint  a 
trustee  in  order  to  prevent  the  failure  of  the  trust.^^  If, 
however,  the  trust  is  one  which  can  be  carried  into  effect  only 
by  the  exercise  of  the  personal  discretion  of  the  trustee,  this 
trust  will,  ordinarily,  be  held  not  to  be  exercised  by  any  per- 
son other  than  the  trustee  named  in  the  will;  and,  accord- 
ingly, if  for  any  reason  such  trustee  can  not  take,  the  trust 
must  fail.^^ 

A  trust  for  an  unlawful  purpose  will  never  be  implied 
Avhere  the  language  of  the  will  can  be  fairly  construed  to  bear 
any  other  construction.^^  However,  if  testator's  intention  to 
create  a  trust  is  clear,  full  effect  must  be  given  to  such  in- 
tention ;  even  if  the  trust  thus  created  must  be  declared  unlaw- 
ful and  ineffectual.^* 

Since  the  intention  of  the  testator  is  to  be  deduced  from  the 

8  Coulson  V.  AJpaugh,  163  111.  court  would  not  allow  a  trust  to 
298_  fail   for  want  of  a  trustee."  Keith 

9  Beurhaus  V.  WatertowTi,  94  Wis.  v.  Scales,  124  N.  Car.  497. 
617 ;  69  N.  W.  986.  ^~  See  Sec.  619. 

10  See  Sec.  621.  ^^  Greene    v.    Greene,    125    N.    Y. 

11  Keith    V.    Scales,    124    N.    Car.       506;   see  Sec.  465. 

497;   John's  Will,   30   Ore.   494;    36  i*  Cottman   v.   Grace,    112    N.    Y. 

L.  R.  A.  242;  Frazier  v.  St.  Luke's       299;    McHusrh   v.   McCole,    97    Wis. 
Church,    147'  Pa.    St.    256.      "The       166;   40  L.  R.  A.  724. 


708  LAW     OF    WILLS. 

will  as  a  whole,  it  follows  that  the  use  of  the  words  "in  trust'' 
is  not  conclusive  in  determining  whether  a  trust  has  been 
created.^  ^ 

§611.     Precatory  words  not  creating  trust. 

In  determining  the  nature  and  existence  of  trust  estates  by 
will,  the  difficulties  presented  may  be  grouped  roughly  un- 
der two  heads: 

First,  It  is  often  difficult  to  ascertain  whether  the  will 
gives  the  devisee  or  legatee  an  absolute  interest,  or  whether 
the  property  is  given  in  trust  for  the  benefit  of  another. 

Second,  it  is  often  equally  difficult  to  detennine  whether 
the  property .  given  is  given  to  the  beneficiary  absolutely,  both 
legal  and  equitable  title  passing,  or  whether  a  trustee  is  in- 
terposed who  is  to  take  legal  title. 

In  determining  whether  the  testator  intended  to  give  the 
devisee  or  legatee  named  an  absolute  estate  for  his  own  bene- 
fit, or  whether  he  intended  to  make  the  devisee  or  legatee  a 
trustee,  merely,  for  some  designated  beneficiary,  the  most 
serious  difficulty  is  presented  by  the  use  of  precatory  words. 
Testators  often  add  to  a  gift  words  which  show  their  wishes 
and  desires  on  the  one  hand  or  their  suggestion  and  advice 
on  the  other  as  to  the  use  which  shall  be  made  of  the  property 
given.  In  determining  whether  these  words  create  a  trust 
or  not  the  intention  of  testator  is  always  to  be  sought,  an  in- 
tention which  is  especially  difficult  to  ascertain,  because  the 
testator  often  does  not  know  exactly  what  sort  of  an  estate 
he  wishes  to  create.  If  the  language  used  by  him  in  the  will 
shows  that  the  beneficiary  is  left  with  discretion  to  make  use 
of  the  advice  given  him  or  to  disregard  it,  the  precatory 
Avords  are  held  not  to  create  a  trust.^^     Thus  a  suggestion  or 


15  Davis  V.  Boggs,  20  0.  S.  550.  ib  Lambe  v.  Eames,  L.  R.  10  Eq. 
In  this  case  a  devise  was  made  to  267 ;  In  re  Hutchinson,  L.  R.  8  Ch. 
testator's  wif6  in  trust.  It  ap-  Div.  540;  Mussoorie  Bank  v.  Ray- 
peared  from  the  whole  will  that  the  nor,  L.  R.  7  App.  Cas.  321  ;  Par- 
beneficial  interest  was  to  pass  to  nail  v.  Parnall,  L.  R.  9  Ch.  Div. 
the  wife,  and  the  words  "in  trust"  96;  Eaton  v.  Watts,  L.  R.  4  Eq. 
were  accordingly  rejected.  151;    Meredith  v.  Heneage,   1   Sim. 


LAW     OF     WILLS. 


709 


recommendation  as  to  the  disposition  wliich  the  devisees  shall 
make  of  their  property  upon  their  death  which  does  not  go 
to  the  extent  of  controlling  their  discretion,  is  held  not  to 
create  a  trnst.^^  So  where  testator  expresses  a  request  or 
makes  a  suggestion  as  to  the  disposition  at  the  death  of  the  de- 


542;    Sale   v.   Moore,    1    Sim.    534; 
Hoy  V.  Master,   6   Sim.  568;   In  re 
Adams,    L.    R.    27    Ch.    Div.    394; 
In  re  Williams    (1897)    2   Ch.     12; 
In  re  Hamilton   (1895)   2  Ch.    370; 
12    Rep.    355;    Mills    v.    Newberry, 
112   111.    123;    Coulson   v.   Alpaugh, 
163    111.    298;    Randall    v.    Randall, 
135  111.  398;  Pellizzaro  v.  Reppart, 
83    To.    497;    Mitchell    v.    Mitchell, 
143  Ind.   113;   Dravo  v.  Seebolt,  — 
Ky.  --  1896;   33  S.  W.  1106;  Pratt 
V.  Sheppard,  etc.    Hospital,  88  Md. 
610;  Halsey  v.  Convention  of  P.  E. 
Church,    75    Md.    275;     Aldrich    v. 
Aldrich,   172  Mass.   101;   Durant  v. 
Smith,  159  Mass.  229;  Fairchild  v. 
Edson,  154  N.  Y.  199;  affirming  77 
Hun,    298;    rehearing    refused,    154 
N.  Y.  Appendix,  38 ;  Clay  v.  Wood, 
153   N.   Y.    134;    Crane's   Will    (N. 
Y.),  54  N.  E.  1089,  Sturgis  v.  Paine, 
146    Mass.    354;    Davis    v.    Mailey, 
134   Mass.   588;    Barrett  v.   Marsh, 
126    Mass.    213;     Whelen's    Estate, 
175    Pa.    St.    23;    Warner's    Estate, 
130   Pa.    St.    359.      (A   clause   that 
testator   would   prefer   not   to   have 
a  division  made  of  his  property  by 
the    heirs    until    a    certian    person 
should  arrive  at  age,  was  held  not 
to    restrict    their    division.)     Good 
v.    Fitchthron,    144    Pa.    St.    287; 
Bowlby    v.    Thunder,    105    Pa.    St. 
173;  Hopkins  v.  Glunt,  111  Pa.  St. 
2S7:    Pennock's   Estate,   20   Pa.    St. 
208;     Hill    v.    Page,    —    Tenn.    — 
1896;  36  S.  W.  735. 

"This  was  intended  by  the  tes- 
tator, it  seems  to  us,  to  express 
his  reason  for  the  gift  to  his  wife, 
and  his  conf.dence  in  her,  and  not 


to  cut  down  or  affect  the  absolute 
character  of  the  gift  which  he  had 
previously  made  to  her."  Aldrich 
V,  Aldrich,  172  Mass.  101;  Durant 
V.  Smith,  159  Mass.  229. 

17  7/1  re  Hamilton    (1895),  2   Ch. 
370;   12  Rep.  355,  affirming   (1895) 
1  Ch.,  373;  64  L.J.  Ch.  N.  S.,  365; 
(a  trust  not  created  by  the  words, 
"I  wish  them  to  bequeath  the  same 
equally    between"    certain    families 
"in   such   mode   as   they   shall   con- 
sider  right").     Whitcomb's   Estate, 
86    Cal.    265;     (the    word    "recom- 
mend" held  not  to  create  a  preca- 
tory trust).     Hill  V.  Page  —  Tenn. 
—  1896;   36  S.  W.  735;    (a  gift  to 
A    "believing    she    will    do    justice 
between  her  relatives   and   mine  at 
her  death"  held  not  a  trust).  Nunn 
V.  O'Brien,  83  Md.  198,  1896;  34  All. 
244;   Aldrich  v.  Aldrich,   172  Mass. 
101;    Eberhardt   v.    Perolin,    49    N. 
J.  Eq.  570,  reversing  48  N.   J.  Eq. 
592  ;    ( to  give  A  an  -amount  "at  her 
Plaisure  if  my  wife  feel  dispose  to 
do   so,   but   it   is  not  obligatory   to 
increase   the    donation"  -  to   B,   held 
optional   as   to   A   and   B).      Tabor 
v.    Tabor,    85    Wis.    313.       (An    ex- 
pression of  testator's  confidence  that 
his   wife,   the   devisee   of   his   prop- 
erty, will  have  it  distributed  among 
their  children  in  such  proportion  as 
would   be   just   and    right,   and   fol-j 
lowed  by  a      clause  providing  that! 
this   expression  on  his  part  should 
not   be   interpreted   as  limiting  her 
right  of  ownership  or  power  of  dis- 
tribution,    held     not     to     create    a 
trust. ) 


710 


LAW    OF    WILLS. 


visee  of   such  property   as   the   devisee   does   not   dispose   of 
during  liis  lifetime,  such  words  do  not  create  a  trust.^* 

A  suggestion  that  devisee  may,  at  his  option,  make  gifts 
to  certain  designated  persons  or  corporations,  or  increase  gifts 
made  by  testator,  does  not  create  a  precatory  trust,  where 
the  direction  is  so  as  not  to  restrain  the  discretion  of  the  bene- 
ficiary.^^ 


§612.     Precatory  words  creating  trust. 

Where,  however,  the  will  shows  that  the  intention  of  testator 
is  that  the  provision  to  be  made  for  the  persons  designated  is 
not  left  to  the  discretion  of  the  devisee,  but  is  to  be  carried 
out  at  all  events,  the  fact  that  he  uses  words  milder  than  those 
of  absolute  command,  such  as  "wish,",  "desire,"  or  "in  full 
confidence  that"  and  the  like,  does  not  prevent  the  gift  from 
being  in  trust,  and  the  devisee  will  be  held  as  a  trustee  for 
the  purposes  indicated,^*' 


18  Toms  V.  Owen,  52  Fed.  Rep. 
417.  (A  direction  that  the  prop- 
erty undisposed  of  at  the  death  of 
testator's  wife,  the  devisee  in  the 
will,  should  be  willed  and  devised 
to  certain  named  persons,  followed 
by  a  provision  that  if  any  cause 
makes  it  unwise  in  her  judgment  she 
need  not  carry  out  such  wish,  does 
not  create  a  precatory  wish.)  Bryan 
V.  Milby,  6  Del.  Eq.  208;  13  L.  R. 
A.  563;  24  Atl.  333;  Bills  v.  Bills, 
80  lo.  269 ;  8  L.  R.  A.  696 ;  Durant 
v.  Smith,  159  Mass.  229;  (nor  does 
a  gift  for  life  with  power  to  expend 
the  principal,  and  a  remainder  over 
to  another,  necessarily  create  a  trust 
for  the  benefit  of  such  other ) .  Mer- 
rill   V.    Hayden,    86    Me.    133;    Ed- 

Igar  V.  Edgar,  26  Ore.  65. 

19  Eberhardt  v.  Perolin,  49  N.  J. 
Eq.  570,  reversing  48  N.  J.  Eq. 
592 ;  ( a  recommendation  to  testa- 
tor's wife,  the  residuary  devisee, 
to  give  a  sum  to  a  given  church 
equal    to    an    amount   given    in    tes- 


tator's will,  providing,  however, 
that  it  is  "at  her  Plaisure  if  my 
wife  feel  dispose  to  do  so,  but  it 
is  not  obligatory  Also  to  increase 
the,  donation"  to  another  benefi- 
ciary, was  held  not  to  impose  the 
increase  of  either  gift  upon  the 
wife).  Kelemen's  Will,  126  N.  Y. 
73;  Clark  v.  Hill,  98  Tenn.  300; 
39  S.  W.  3.39;  Hunt  v.  Hunt,  18 
Wash.    14. 

20  Abend  v.  Endowment  Fund 
Commission,  174  111.  96,  affirming 
74  111.  App.  654 ;  Ingraham  v.  In- 
graham,  169  111.  4.32,  471,  citing 
Colton  V.  Colton,  127  U.  S.  300; 
Bronson  v.  Strouse,  57  Conn.  147 ; 
Hunt  v  Fowler,  121  111.  269;  John- 
son V.  Billups,  23  W.  Va.  685; 
Blanchard  v.  Chapman,  22  111.  App. 
341;  Cox  V.  Wills,  49  N.  .1.  Eq. 
130,  573;  Forster  v.  Winfield,  142 
N.  Y.  327;  Ide  v.  Clark,  5  0.  C. 
C.  239;  Oyster  v.  Knull,  137  Pa. 
St.  448. 


LAW    OF    WILLS.  711 

Thus  a  bequest  to  A  reciting  that  testator  has  entire  confi- 
dence that  A  will  distribute  the  property  among  certain  per- 
sons, will  create  a  trust  for  their  benefit  unless  the  context 
of  the  will  shows  that  testator  intends  to  leave  it  to  A's  dis- 
cretion whether  to  make  such  distribution  or  not.^^  And 
where  such  a  direction  in  the  will  is  given,  and  the  devisee 
,  does  not  make  any  provision  for  the  person  indicated,  equity 
^-^  will  make  suitable  provision  out  of  the  estate  of  testator.^^ 
In  a  recent  Connecticut  case  testator  had  given  legacies  to  his 
wife  to  help  her  brothers  and  sisters  as  she  might  see  fit,  and  the 
remainder  of  the  property  thus  given  to  go,  at  her  death,  to 
A  for  the  same  purpose,  unless  the  wife  saw  fit  to  dispose  of 
the  remainder  by  will,  in  which  case  it  was  provided  that 
"then  they  go  as  she  wills."  It  was  held  that  this  did  not 
authorize  the  wife  to  defeat  the  trust,  but  merely  gave  her 
power  to  appoint  some  other  person  than  A  as  her  succes- 
sor in  the  trust.^^ 

Where  the  will  shows  an  intention  to  provide  for  a  certain 
son,  the  language  will  be  construed,  where  possible,  as  creat- 
ing a  trust,  even  though,  as  punctuated,  it  may  seem  to  leave 
the  gift  in  the  discretion  of  the  trustee.^^ 

§613.     Words  showing  the  motive  for  the  gift. 

Words,  while  possibly  not  strictly  precatory,  but  which 
should  be  considered  in  connection  with  precatory  words,  are 
those  which  explain  testator's  motive  and  purpose  in  making 
a  gift.     It  is  often  difficult  to  determine  whether  these  words 

21  Blanehard  v.  Chapman,  22  111.  would  make  a  suitable  provision  for 
App.  341 ;  Cox  V.  Wills,  49  N.  J.  him,  and  that  a  provision  of 
Eq.  l.SO,  573:  Forster  v.  Winfield,  $10,000  out  of  an  estate  worth 
142  N.  Y.  327.  $86,000    was    not    unreasonable.) 

22  Murphy  v.  Carlin,  113  Mo.  112.  23  Dexter  v.  Evans,  63  Conn.  58. 
(A  wish  was  so  expressed  as  to  be  24  Black  v.  Herring,  79  Md.  146. 
obligatory  that  testator's  wife  (A  gift  after  paying  a  given  de- 
should  make  a  suitable  provision  vise  to  another,  "should  they 
for  one  raised  a  member  of  testa-  (trustees)  think  proper  so  to  do, 
tor's  family,  if  he  should  continue  to  pay  over  from  time  to  time"  to 
to  be  a  dutiful  child.  Testator's  the  son,  was  held  to  create  a  trust 
wife  died  without  making  any  such  for    the    son.) 

provision ;    it   was    held   that   euity 


712  LAW     OF     WILLS. 

create  a  trust  or  not.  The  test  as  laid  down  by  the  courts  is 
a  simple  one,  the  application  alone  being  difficult.  If  the  will 
clearly  shows  that  the  use  of  the  property  indicated  is  merely 
the  motive  which  leads  testator  to  make  the  gift,  and  if  the 
beneficiary  is  not  limited  in  his  discretion  as  to  the  use  which 
he  is  to  make  of  it,  the  gift  does  not  impose  a  trust.  Thus  a 
gift  to  testator's  wife  to  support  herself  and  her  children  is 
generally  held  to  give  an  absolute  estate  to  the  wife,  free 
from  any  trust  for  the  benefit  of  the  children,  this  being 
merely  testator's  motive  in  making  the  gift.^^ 

A  devise  to  testator's  wddow  of  all  his  personal  property, 
for  her  use  and  the  maintenance  of  the  minor  children,  gives 
her  the  personal  property  absolutely  as  legatee  and  not  as 
executrix,  though  she  is  appointed  executrix  in  the  same  will 
and  given  power  as  such  administratrix  to  sell  real  estate.^^  So 
a  devise  to  one  for  his  own  use  during  his  lifetime  is  held  to 
be   an   absolute   gift   and   not    a    trust.^'^ 

Even  where  a  gift  to  one  for  the  support  of  himself  and  his 
family  is  held  not  to  be  a  trust,  it  has  been  held  that  the  chil- 
dren in  the  family  who  were  to  be  supported  by  the  benefi- 
ciary, though  they  can  not  assert  any  interest  as  against  the 
beneficiary,  may  do  so  as  against  his  creditors  by  having  a 
reasonable  part  of  the  income  set  apart  for  their  support.-^ 

Where,  however,  the  will  shows  clearly  testator's  intention  to 
charge  the  property  with  the  support  and  maintenance  of  the 

25  Pellizzaro    v.    Reppart,    83    lo.  cate  the  children  is  also  construed 

497;    Zimmer    v.    Sennott,    134    111.  as   not   creating   a   trust). 

505;    Randall    v.    Randall,    135    111.  The    case    of    Forbes    v.    Darling, 

398;    Jones   v.   Jones,   93   Ky.   532;  94   Mich.    621,   is   at   variance   with 

Lloyd  V.  Lloyd,  173  Mass.  97;  Small  the  cases  cited  in  this  note,  in  that 

V.    Field,    102    Mo.    104;     Elkinton  the  language  showing  testator's  in- 

V.    Elkinton    (N.    J.    Eq.).    18    Atl.  tention   in  making  the  gift  was   so 

587 ;    Cressler's  Estate,   161   Pa.   St.  strong  as  to  create  a  trust.   See  Sec. 

427;   Mazurie's  Estate,   132  Pa.   St.  605. 

157;  Paisley's  App.  70  Pa.  St.  153;  26  Heppenstall's    Estate,    144    Pa. 

Citizens'  Bank  and  Trust  Company  St.  259. 

V.    Bradt    (Tenn.),   50    S.   W.    778;  27  .Justus'      Succession,      45      La. 

Wilmoth    V.    Wilmoth,    34    W.    Va.  Ann.  190;   Roundtree  v.  Roundtree, 

426;  Seamonds  v.  Hodge,  36  W.  Va  26  S.  C.  450. 

304;     (and    of    course    a    devise    to  28  Allen  v.  Furness,  20  Ont.  App. 

a  husband   to  provide  for  and  edu-  34. 


713 

LAW    OF    WILLS. 


children  and  that  the  furnishing  of  snch  support  was  no    lett 
to  the  discretion  of  the  devisee,  a  trust  is  held  to  be  ereated.- 

In  a  recent  South  Carolina  case  a  gift  to  a  parent,  in  order 
to  enable  him  to  furnish  a  borne  and  support  for  his  children, 
was  said  to  be  a  "quasi  trust.'""  ,        ,,     , 

In  an  Illinois  ease  a  provision,  "I  now  place  the  house  in 
the  hands  of  the  administrators  for  the  benefit  of  my  daug^iter 
and  my  son  for  them  and  their  children  should  they  have 
any,"  was  held  to  be  a  gift  to  the  son  and  daughter  for  life, 
one-half  to  each,  with  remainder  over  to  their  children. 

A  devise  of  the  residue  of  testator's  estate  to  the  executors 
from  which  to  pay  testator's  debts  by  sale,  mortgage,  collec- 
tion of  rents  or  in  any  other  way  that  they  may  see  fit,  created 
a  triist.^^ 

§614.     Words  creating  an  express  trust. 

An  express  trust  may  be  created  in  a  will  by  any  form  of 
words  which  shows  testator's  intention  to  give  the  legal  inter- 
est in  the  property  devised,  to  c«ie,  and  the  equitable  interest 
in  the  same  property  to  another.^^ 

..S„eerv.Stutz,!l3Io.  62;Con.      lecting    debts    from    decedent's    es- 

7'.i::^^^^:^^^^<^-      ""h„„    v.    Honow.,     .S    00 
t  333.  Fo..es  v.  Da.Ung.  U  Mic.       .>«■,  --P-'J;  ^f -^,:;^,J^: 

^^^'  .  f    +v,p    oa«Ps    in  Fuller  V.  Fuller,  84  Md.  475;  Black 

A    comparison    of    the    cases    in  ^^^^  ^^11,,  ^. 

which  no  trust  is  held  to  be  created  ^    «    "ng,   79  M.  ,  ^ 

with    this    case    in    which    a    trust  l^^^'^'^'l'/l      '..7.    Traphac^en 

MS   been   held   to   be   created,    will  ^^'^^^   ^^    ^^^.'^Jg    ^o^T 

show  that,  while  courts  agree  upon  ^-   ^f^'  *^  ^-  ^-   f_^   ^     '       346. 

the  general  rule  for  determining  the  ward    v.    James,    115    N.    Y     346, 

rt^tJnofthe^rdsusedin  ---.  -^f    ^s  "a  t 

"To  Howe  :    Gregg,  52  S.  C.  88.  vi!e  of  property  to  the  daughter  of 

31  B.Tclay  V.   Plfu,   170  111.   384.  testator,  appointing  trustees  to  take 

32Seitzinger's  Estate,  170  Pa.  St.  possession  and  control  of  the  prop- 

531         Hence,   the   creditors   of  the  erty   and   apply   the   income   to  her 

Estate  may  ei^force  such  trust  after  support    and    education,    un  il,      n 

the   t'r  fixed   bv   statute   for   col-  their  judgment,  she  is  compet^t  to 


714 


LAW    OF    WILLS. 


A  gift  of  property  in  trust  for  a  named  beneficiary  for  liis 
life,  and  at  kis  death  the  remainder  to  go  to  persons  designated, 
creates  a  trust  only  during  the  life  estate,  the  legal  and  equi- 
table interests   passing  together  to   the   remaindermen.^^ 

Where  the  income  is  given  for  life  to  a  beneficiary  and  the 
executors  are  directed  to  deposit  the  principal  with  a  se- 
curity company  for  investment,  unless  they  invest  it  them- 
selves, a  trust  is  create d.^^ 

A  gift  of  the  residue  of  testator's  estate  to  certain  named 
trustees  to  administer  it  for  ten  years  and  then  account  for 
it  to  the  residuary  legatees,  creates  a  trust,  and  the  legatees 
do  not  acquire  any  legal  title  except  through  trustee.^^  But 
where  the  only  duty  of  the  trustee  was  to  receive  the  money, 
and  pay  it  at  once  to  the  beneficiaries,  it  was  held  to  be 
proper  for  the  executor  to  pay  the  money  to  the  beneficiaries, 
ignoring  the  trustee.^^ 


control  it,  in  which  case  they  may 
surrender  it  to  her,  creates  a  trust. 
The  legal  title  is,  therefore,  in  trust- 
ees until  they  surrender  it  to  the 
daughter.)  Meek  v.  Briggs,  87  lo. 
CIO. 

(So  a  bequest  in  trust  for  the 
niece  of  testator,  the  income  to  be 
paid  to  her  for  life  and  the  remain- 
der over,  with  a  direction  that  if 
she  should  desire  her  income  to  be 
increased  by  an  annuity,  the  trust- 
ee could,  at  such  request,  invest 
part  of  the  fund  in  such  annuity, 
was  held  to  create  a  trust,  and  not 
authorize  the  trustee  to  pay  the 
trust  fund  directly  to  the  niece.) 
Lejee's  Estate,  181  Pa.  St.  416. 

(So  where  testator,  in  one  clause 
of  his  will,  bequeathed  property  to 
A,  and  in  a  subsequent  clause  di- 
rected that  the  property  thus  be- 
queathed be  held  by  a  trustee  to  in- 
vest it  and  pay  the  income  to  A 
during  his  life,  and  after  his  death 
the  principal  to  be  held  "in  trust 
to  and  for  the  only  proper  use  and 
benefit  of"  A's  children  bv  his  first 


wife,  it  was  held  that  A  took  merely 
an  equitable  life  estate,  in  which 
his  second  wife  had  no  interest 
whatever.)  Fetherman's  Estate,  181 
Pa.   St.   349. 

(And  where  testator  gave  all  his 
property  by  will  to  his  son,  and  pro- 
vided that  the  executor  should  in- 
vest this  property  and  use  the  in- 
come for  the  son's  support  during 
his  minority,  it  was  held  that  a 
trust  was  thereby  created,  and  that 
the  executor  in  his  trust  capacity, 
and  not  the  guardian  of  the  minor, 
had  a  right  to  the  possession  of  the 
trust  funds.)  Chandler  v.  Mills  (N. 
J.  Eq.)    (1897),  37  Atl.  603. 

34  Baxter  v.  Wolfe,  93  Ga.  334; 
Charleston,  etc.  By.  Co.  v.  Hughes, 
105  Ga.  1 ;  Simms  v.  Buist,  52  S. 
C.  554. 

35  Pinney  v.  Newton,  66  Conn. 
141. 

36  Simpson  V.  Molson's  Bank 
(1895),  App.  Cas.  270;  11  Rep. 
427  P.  C. 

37  Hamlin  v.  Mansfield,  88  Me. 
131. 


715 

LAW    OF    WILLS. 

A  provision  that  a  certain  firm  of  attorneys  shall  receive 
the  rents  and  attend  to  the  "minor  details"  does  not  create 
an  express  trnst.^^  . 

A  R-ift  to  one  which  in  itself  wonld  he  absolute  is  not 
treated  as  a  trnst,  hecanse  in  the  same  will  other  gifts  m  trnst 
are  made  to  the  same  beneficiary.^*^ 

A  gift  in  terms  absolute  is  not  considered  as  a  trust  because 
of  a  direction  as  to  the  disposition  of  the  income  to  the  bene- 


ficiary.^°  ,    .  ^  j.      -,. 

A  o-ift  of  all  of  testator's  property  to  A  m  trust  for  his 
childr^'en,  the  remainder  of  such  estate  to  A  for  life,^  gives  A 
a  life  estate  in  testator's  property  free  from  the  trust. 

§615.     Dry  trusts. 

In  states  in  which  the  statute  of  uses  is  in  force,  words 
which  are  intended  to  create  a  trust  in  which  no  duties  of  any 
kind  are  imposed  upon  the  trustee  can  not  be  given  the  eftect 
intended  by  testator.  .This  form  of  trust  fs  known  as  a  pas- 
sive trust,  or  sometimes  a  dry  trust,  and  under  the  statute 
the  legal  title  vests  in  the  cestui  que  triist}^  Thus  a  gift  to  A 
to  be  held  in  trust  for  the  issue  of  his  body  gives  A  no  bene- 
ficial interest  and  the  trust  is  at  once  executed  on  the  birth 

as  Toland  v.  Toland,  123  Cal.  140.       though  there  was  a  P^^-.^^^';;;* 
30  Jackson   v.    Thompson,   84   Me.       the  interest  should  be  paid   to  the 
44.       (A    direction    to    pay    certain       church  as  it  became  due  ) 

legacis   to   testator's   daughter,   to  ^^  ^-Z^"'  f  .^f".    vt     178 
pay  testator's  son  only  the  income  -Buck    v.    Sn.th,    ^0    Vt^    1  8. 
of   $5,000    during   his   natural   life,  (In  this  case  the  two  gi  t     are  in 
Tndi    there  should  be  a  surplus  left  consistent,    taken    separately.      The 
to  d  vide  the  remainder  among  all  only   posible   method   of   reconci  ing 
of   t    tator's   children,  was  held  to  them  is  to  treat  A's  as  an  absoKite 
create    a    trust    for    the    benefit    of  life-interest   with    an    equitable    re- 
testator's    son    in    the    $5,000,    but  mainder   to  th.  '^^'^^^^-^ 
to  give  him  a  shar.  of  the  surplus  -  In  re  ^--^f '/f  ^%^-  ^f '. 

absolutely)  Hopkins   v.   Kent,    145   N.   Y.    363, 

^  Rote   V.'  Warner,    17    Ohio   C.    C.  Robinson  v.  OstendorfF,   38   S.  Car. 

66;  Mims  v.  Maoklin,  53  b.  Car.  b; 

40  Rhodes  V.  Rhodes,  88  Tenn.  637.  Sims  v.   Sims,  94  Va.  580    ( 18n7|^; 

(Thus    a    bequest    of    a   bond    to    a  27  S.  E.  436;   Schinz  v.  Schmz,  90 

church  was  held  to  be  a  direct  gift,  Wis.  236. 


716  LAW    OF    WILLS. 

of  issue.^^  But  where  certain  active  duties  are  imposed  upon 
the  trustee,  as  to  take  charge  of  the  realty  in  certain  contin- 
gencies, the  trust  is  not  a  dry  one.^^ 

§616.     Effect  of  failure  of  trusts. 

Where  testator  uses  words  which  clearly  show  an  intem- 
I  tion  to  benefit  the  cestui  que  trust,  and  as  a  means  to  that  end 
he  attempts  to  create  a  trust  which  subsequently  proves  im- 
possible of  literal  fulfillment,  it  is  held  that  the  intention  of 
testator  will  be  given  effect  by  treating  the  gift  as  an  ab- 
solute one,  free  from  any  trust.''^ 

Testator  by  will  created  a  trust  for  life  of  A,  income  pay- 
able to  A  for  life,  then  to  B,  daughter  of  A.  The  will  showed 
that  the  trust  was  created  to  protect  B's  .interests.  It  was  held 
that  on  B's  conveying  all  her  interests  in  the  trust  fund  to  A, 
Awas  entitled  to  the  possession  of  the  corpus  of  the  property, 
discharged  from  the  trust. '^^  This  is  a  particular  application 
of  the  doctrine  of  general  and  particular  intent."*'^ 

In  the  cases  cited  the  paramount  intention  of  testator  was 
to  benefit  the  cestui  que  trust,  hence  the  particular  intent, 
that  of  accomplishing  this  result  by  means  of  a  trust,  was 
disregarded  in  order  to  enforce  tlie  paramount  intent.  Accord- 
ingly in  other  cases,  where  the  purpose  of  the  trust,  as  ex- 
pressed in  the  will,  fails  for  any  reason,  the'  devise  as  a  whole 
fails  or  a  resulting  trust  for  testator's  heirs  or  next  of  kin 
arises. 

Where  the  event  becomes  imposible,  the  trust  ordinarily 
terminates  at  once.^^  Thus  a  trust  to  last  until  the  marriage 
of  A,  terminates  upon  the  death  of  A  ;^^  and  a  trust  to  be  ex- 

43  Mims  V.  Macklin,  53  S.  Car.  6.  trust,   where   the   property   can   not 

44  People's  Loan  &  Exchange  Bank  be  planted  to  advantage.)  Neely 
V.  Garlington,  54  S.  Car.  413;  71  v.  Phelps,  63  Conn.  251;  Mansfield 
Am.  St.  Rep.  800.  v.  Mix,  71  Conn.  72. 

45 /n  re  Bowes   (1896)   1  Ch.,  507.  46  Sharpless's  Estate,   151  Pa.  St. 

(A   gift   of    5,000    pounds    in    trust  214. 

to  benefit  the  devisees  of  real  prop-  47  See  Sec.  463. 

erty  by  planting  trees  upon  the  prop-  48  Mansfield  v.  Mix,  71  Conn.  72. 

erty,    was    treated    as    an    absolute  49  Toner   v.    Collins.    67    To.    360 ; 

gift  to  the  devisees,  free  from   any  Baker  v.  McAden,  118  N.  Car.  740. 


717 

LAW    OF    WILLS.  '^* 

ercised  in  the  personal  discretion  of  a  trustee  terminates  upon 
the  death  of  such  trustee.^*^ 

Where  property  is  devised  in  trust  during  the  minority 
of  testator's  son  and  afterwards  if  he  should  continue  to  use 
intoxicating  liquors  to  excess,  it  was  held  that  on  testator's 
death  after  such  son  came  of  age  the  legal  title  to  the  prop- 
erty given    passed  to  the  son.^^ 

§617.     Resulting  trusts. 

Where  the  testator  creates  a  trust  evidently  not  for  the  ben- 
efit of  the  trustees,  but  for  the  benefit  of  others,  and  does  not 
designate  the  cestui  que  trust,  the  trust  is  held  in  such  cases 
to  be  for  the  benefit  of  testator's  heirs  or  next  of  kin.^^ 

§618.     Duration  of  trusts. 

Where  testator  indicates  by  his  will  a  specific  duration  of 
the  trust  created  in  the  will,  his  intention,  if  not  in  violation 
of  the  rule  against  perpetuities,  will  be  given  effect  and  the 
trust  will  continue  for  the  time   indicated.^^ 

Where  the  trust  is  expressly  given  to  continue  for  the  life 
of  the  trustee,  such  effect  will  be  given  to  it.^^ 

Where  testator  does  not  specifically  indicate  the  time  for 
which  the  trust  is  to  continue,  his  intention  must,  if  pos- 
sible, be  deduced  from  the  entire  will.  Where  the  evident 
purpose  of  a  trust   is  the   accomplishment  of  the  particular 

50  Neeley  v.  Phelps,  63  Conn.  251 ;  Hardy,  120  Ma.ss.  524 ;  Heidenheim- 
Hadley  v]  Hadley,  147  Ind.  423;  er  v.  Bauman,  84  Tex.  174;  Sims  v. 
Mobley  V.  Cumniings,  35  S.  Car.  Sims,  94  Va.  580.  ,,  ^  « 
,Qj  53  Hamilton  v.  Rodgers,   38  O.   b.. 

51  Mansfield  v.  Mix,  71  Conn.  72.  242.  (Hence,  where  the  trust  was 
In  some  jurisdictions  this  doctrine  to  terminate  with  the  termination 
does  not  apply  in  cases  of  chari-  of  certain  annuities,  a  provision  for 
table  trust.     See  Sec.  655.  furnishing   support   to   others   does 

52  In  re  Brown,  8  Manitoba,  391 ;  not  extend  the  period  for  which  the 
Jacob    y.    Jacob,    78    Law    T.    Rep.      trust  is  to  exist. ) 

825.  affirming  78  Law  T.  Rep.  451;  ^^In   re  Hudson,    13   Rep.   546. 

Abell  y.  Abell,  75  Md.  44 ;   Sears  y. 


718  LAW     OF     WILLS. 

object,  the  trust  continues,  if  possible,  to  exist  until  such,  ob- 
ject is  accomplished.*^^ 

Thus  where  a  trust  is  created  for  controlling  property  until 
testator's  children  reach  a  certain  age,  when  the  property  is 
to  be  divided  among  the  children,  it  is  held  that  the  truest  does 
not  terminate  of  itself  upon  the  arrival  of  testator's  children 
at  such  age ;  but  continues  until  the  trustees  have  exercised 
the  power  given  them  by  dividing  and  distributing  the  prop- 
erty.5® 

On  the  other  hand,  the  fact  that  a  fee  is  given  to  trustees 
does  not  show  testator's  intention  that  the  trust  estate  shall 
continue  after  the  active  duties  connected  with  the  trust  have 
been  accomplished.^"^ 

Where  the  purpose  of  the  creation  of  the  trust  is  to  pro- 
vide the  support  of  one  for  life,  the  trust  thus  created  will, 
'prima  facie,  continue  for  the  life  of  such  beneficiary,  and 
will  not  be  terminated  before  that  time  by  the  death  of  the 
remaindermen.^^  On  the  death  of  such  beneficiary  the  trust 
property  will  vest  in  the  remaindermen.^^  Thus  a  trust, 
the  income  to  be  paid  to  certain  named  persons  for  life,  or 
their  descendants  respectively,  was  held  to  create  a  trust  for 
the  lives  of  the  original  takers  only,  the  gift  to  their  de- 
scendants being  merely  substitution al.^° 

A  trust  for  the  benefit  of  certain  named  persons  for  their 
respective  lives  with  remainder  over  terminates  upon  the 
death  of  any  beneficiary,  as  to  his  share  of  the  estate,  and  as 
to  that  alone.^^  While,  if  the  trust  is  so  created  as  to  last 
during  the  life  of  several  persons,  or  to  the  survivor  of  them, 
the  death  of  any  number  of  the  persons  indicated  less  than  all 
does  not  affect  the  duration  of  the  estate.^^ 

55  Grand  Prairie  Seminary  v.  Mor-  740 ;  Hopkins  v.  Kent,  145  N.  Y. 
gan,  171  III.  444,  affirming  70  111.  363;  Pendleton  v.  Bowler,  27  O. 
App.    57.5;    Abell   v.   Abell,    75   Md.       L.  J.   313 

44;    Marshall's   Estate,   147   Pa.  St.           so /„  re  Morgan   (C.  A.)    (1893), 

77.  3  Ch.  222. 

56  Potter  V.  Couch,  141  U.  S.  ei  Tarrant  v.  Backus,  63  Conn. 
296;  Marshall's  Estate,  147  Pa.  St.  277;  Smith  v.  Hall,  20  R.  I.  170. 
77.  62  Abell  V.  Abell,  75  Md.  44  :  Shat- 

57  Abell  V.  Abell,  75  Md.  44.  tuck    v.    Balcum,    170    Mass.    245; 
ssAsche  V.  Asche,  113  N.  Y.  232.       Comly's  Estate,  136  Pa.  St.  153. 

59  Baker  v.  McAden,   118  N.  Car. 


719 

LAW     OF    \VILI.S. 

A  gift  to  certain  designated  persons  to  be  held  in  trust 
until  the  happening  of  a  certam  event,  becomes  absolute  upon 
the  happening  of  such  event.*'^ 

A  -ift  in  trust  for  A  for  life,  and  on  his  death  to  his  chil- 
dren by  his  first  wife,  gives  A  an  equitable  life  estate  only, 
in  which  his  second  wife  has  no  interest  as  widow  or  as  ex- 

ecutrix.^*  .         .    , 

When  the  will  is  not  specific  as  to  the  exact  duration  ol  the 
estate  given  to  the  trustee,  the  law  presumes  that  the  testa- 
tor intended  to  give  the  trustee  an  estate  of  such  duration 
as  would  make  it  possible  for  him  to  execute  the  duties  im- 
posed upon  him  by  the  trust.^^  Thus  a  direction  t^iat  the 
trustees  sell  certain  property,  and  that,  until  such  sale,  they 
lease  it  and  control  it,  vests  the  legal  title  of  the  property  m 
the   trustee  until  the   accomplishment   of   the   trust. 

So  a  trust  which,  by  the  terms  of  its  creation,  may  amount 
to  a  fee  simple,  passes  an  estate  of  inheritance  to  the  trus- 
tee.«^  On  the  other  hand,  a  mere  power  of  sale  does  not  vest 
the  leo-al  title  in  the  donee  of  the  power  as  a  trustec'^^ 

It  may  be  laid  down  as  a  general  rule  that  a  devise  to 
trustees,  even  in  general  terms,  will  create  no  greater  estate 
in  such  trustees  than  is  necessary  for  the  purposes  of  the 
trust.^^ 

§619.     Discretionary  power  of  trustees. 

A  trust  mav  be  so  created  by  the  terms  of  the  will  that  the 
trustee,  at  his' discretion,  may  give  or  withhold  the  trust  funds 

63 /n    re    Bogle     (Ch.),    78    Law  e.  Fetterman's  Estate,  181  Pa.  St. 

Times   Rep.   457.      (Property   given  349.                                     c-  r^    «in 

in  trust  to  become  absolute  if  bene-  ^5  Meeks  v.  Br.ggs,  8 .    lo.  610^ 

ficiarv    should    have    two    children  -Crane   v.   Bolles    49   N.   J    Eq^ 

who  Attain  the  age  of  twenty-one.)  373;     Webster     v.    Thorndyke,     11 

Mackrell    v.    Walker,    172    Pa.    St.  Wash.  390.                              Contracts 

154-    Fetherman's   Estate,    181    Pa.  ^^  In     re     Townsend  s     Contracts 

St.  349;  /nr«  Clarke,  19  R.  I.  110;  (189.5) ,  1  Ch.  71G. 

33   Atti.    585    (a   trust   to   last   till  es  Steinhardt  v.  Cunningham,  130 

majority  of  either  child)  ;  Meacham  N.  Y.  292                              i ..    W     Y 

V.  Graham,  98  Tenn.  190  (1897),  39  69  Tompkm's    Estate,    154    N.    Y. 

S.    W.    12;    Mason    v.    Broyles,    —  634. 
Tenn.  —   (1896)  ;   38  S.  W.  92. 


720  LAW     OF     WILLS. 

in  the  performance  of  the  trust.  Such  a  trust  is  upheld  in 
some  jurisdictions.^*^  The  discretionary  power  given  to  the 
trustee  will  not,  however,  be  so  construed  as  to  allow  the 
trustee  to  ignore  another  and  independent  provision  of  the 
will,''^  nor  can  a  discretion,  to  be  exercised  if  circumstances 
should  alter,  be  exercised  where  there  was  no  change  of  cir- 
cumstances.'^^ 

If  the  trust  created  by  the  will  is  dependent  for  its  exer- 
cise upon  the  personal  discretion  of  the  trustee,  it  is  generally 
held  that  such  a  trust  must  be  terminated  upon  the  death  or 
resignation  of  the  trustee,  since  the  testator  allowed  the  ex- 
ercise of  this  discretion  because  of  his  reliance  on  the  judg- 
ment and  discretion  of  the  trustee.'^^  But  where  the  intention 
of  the  testator  is  evidently  that  the  trust  shall  continue,  sub- 
ject to  modification  at  the  discretion  of  the  first  trustee,  it  is 
held  that  upon  his  death  the  trust  does  not  terminate,  but  only 
the  discretionary  right  of  modification.'^^  But  where  a  dis- 
cretionary power  is  expressly  vested  in  certain  trustees  and 
their  successors,  such  discretion  is  not  personal  to  the  first 
named  trustees."^^ 

70  Gichrist   v.    Eduoational    Trust  port  of  B  according  to  his  condition 

(1895),  1  Ch.  3G7;  66  L.  J.  Ch.  N.  .in   life,  was   held  to  be   sufficiently 

S.  298;  In  re  Percy,  65  L.  J.  Ch.  N.  certain.) 

S.    364  ;    In   re   Dudgeon    ( Ch. ) ,   74  ti  National  Bank  of  Commerce  v. 

Law   T.   Hep.   613;    Delmar's   Char-  Smith,  17  R.  I.  244. 

itable  Trust    (1897),  2  Ch.  163;   66  "Morgan  v.  Halsey,  97  Ky.  789. 

L.  J.  Ch.  N.  S.  555 ;   Security  Com-  73  Hadley  v.  Hadley,  147  Ind.  423; 

pany  v.   Snow,   70  Conn.   288;    Cre-  Gambel  v.   Trippe,   75  Md.  252;    15 

rar  v.  Williams,  145  111.  625,  Had-  L.    R.    A.    235;    Baker   v.    McAden, 

ley  V.  Hadlej%  147  Ind.  423;  Rotch  18  K  C.  740;  Young  v.  Young,  97 

V.  Emerson,   105  Mass.  431;   Weber  N.  C.  132. 

V.    Bryant,    161    Mass.    400;    Baker  74  Security  Company  v.  Snow,  70 

V.   McAden,    118   N.   C.   740;    Good-  Conn.    288.      (Thus   where   testator 

ale   V.   Mooney,   60   N.   H.   528;    49  made  his  wife  a  trustee  to  pay  the 

Am.    Rep.    334;    Murphy's    Estate,  income  to  testator's  daughter  as  the 

184   Pa.    St.    310;    Kinike's   Estate,  wife  should  think  best  for  the  inter- 

155  Pa.  St.  101 ;   Sawtelle  v.  With-  est  and  welfare  of  the  daughter,  it 

am,  94  Wis.  412.     The  fact  that  the  was  held  that  upon  the  death  of  the 

performance    is    left    in    the    discre-  mother,  the  succeeding  trustee  had 

tion  of  the  trustees  does  not  make  no  discretion  to  withhold  the  daugh- 

the     trust     void     for     uncertainty.  ter's  share.) 

Cresap   v.    Cresap,    34   W.   Va.    310.  75  Security  Co.  v.  Cone,  64  Conn. 

(A  devise  to  A  in  trust  for  the  sup-  579. 


LAW     OF     WILLS. 


721 


Where  the  duties  of  trustees  are  specifically  indicated  by 
the  will,  and  no  room  is  left-  for  the  exercise  of  discretion, 
the  death  of  the  first  trustee  does  not  terminate  the  trust; 
and  on  the  failure  of  the  trustees  indicated  by  the  will, 
equity  will  appoint  a  trustee  to  carry  the  provisions  of  the 
trust  into  executionJ^ 

In  other  jurisdictions,  however,  the  validity  of  a  trust  to  be 
exercised  at  the  discretion  of  the  executor  acting  as  trustee,  or  of 
a  regularly  named  trustee,  has  been  denied.  The  grounds  given 
for  this  position  have  been  twofold :  first,  that  such  a  trust  would 
be  void  for  uncertainty  since  it  could  not  be  enforced  or  directed 
by  a  court  of  equity.  Such  a  reason,  of  course,  applies  with 
somewhat  less  weight  to  charitable  trusts  than  to  other  trusts, 
especially  where  the  discretion  of  the  trustee  is  to  be  exercised 
in  the  selection  of  the  beneficiaries.'^''' 

The  second  ground  of  attack  is  that  this  form  of  devise 
really  leaves  it  to  trustee  to  make  a  will  for  the  testator  after 
testator's  death.  This  objection  seems  inconsistent  in  view  of 
the  fact  that  the  validity  of  powers  created  by  will  is  un- 
questioned.'^^  But  whether  strictly  consistent  or  not,  the 
courts  in  many  states  have  on  one  or  both  of  these  grounds 
declared  that  trusts  were  void  where  the  selection  of  the  ben- 
eficiaries and  the  plan  and  execution  of  the  main  scheme  was 
left  in  the  discretion  of  the  trustees.'^^ 

§620.     Parol  trusts. 

In  some  cases  a  devise  is  made  absolute  on  its  face,  and  it 
is  sought,  by  evidence  of  an  extrinsic  oral  agreement  between 
the  testator  and  the  devisee,  to  hold  the  devisee  as  trustee 
for  the  beneficiary  indicated  by  such  agreement.  To  enforce 
such  a  trust  is  apparently  to  disregard  both  the  Statute  of 
Wills  and  the  Statute  of  Frauds.     And  it  is  held  in  some  cases 

76  Hemphill's  Estate,  180  Pa.  St.  29;  Fairehild  v.  Edson,  154  N.  Y. 
95;   see  Sec.  610.  199;    People  v.   Powers,    147    N.   Y, 

77  See  Sec.  643.  104 ;  Johnson  v.  Johnson,  92  Tenn. 
88  See  Sec.  689-698.  559 ;  36  Am.  St.  Rep.  104 ;  22  L.  R 
79  Wheelock  V.  American  Tract  So-       A.    179;    Fifield   v.    Van   Wyck,   94 

ciety,    109     Mich.     141;     Tilden    v.       Va.  557. 
Green,   130   N.   Y.  29;    14  L.   R.   A. 


722  LAW    OF    WILLS. 

that  no  attention  can  be  paid  to  such  arrangements,  except 
in  so  far  as  the  same  appear  upon  the  face  of  the  will.®^  Buc 
such  an  arrangement  is  often  made  in  order  to  evade  some 
rule  of  law  which  would  render  the  trust  invalid  if  expressed 
upon  the  face  of  the  will.  Thus  oral  trusts  have  been  used 
as  a  means  of  devising  property  to  a  corporation,  where  the 
circumstances  were  such  that  a  direct  devise  would  have  been 
invalid,*^  or  as  a  means  of  devising  property  to  testator's  il- 
legitimate children,  in  excess  of  the  amount  which  testator, 
by  statute,  might  dispose  of  to  the  exclusion  of  his  legiti- 
mate children.**^  Accordingly,  in  some  states  these  trusts 
may  be  proved  by  parol,  and  if  a  direct  gift  would  have  been 
invalid,  the  secret  tnist  can  not  be  sustained;  further,  the 
nominal  beneficiary  is  not  allowed  to  hold  the  gift  for  his  owti 
use.®^ 

A  devise  to  testator's  son  for  life  will  be  reconciled  with  a 
subsequent  devise  of  the  same  property  in  trust  for  his  wife 
and  children,  by  construing  the  will  to  give  to  the  son  the 
right  to  occupy  such  property  together  with  his  wife  and 
children.^* 

§621.     Validity  of  trusts. 

In  order  to  be  valid  and  enforceable  a  trust  must,  of  course, 
possess  the  elements  already  indicated  as  essential  to  a  trust.®^ 
In  addition  to  these  requirements,  the  trust  must  be  so  cre- 
ated as  not  to  violate  any  settled  rule  of  law  or  equity.  Thus 
a  trust  violating  the  rule  against  perpetuities  is  invalid.* 
So  a  trust  created  for  the  accomplishment  of  an  unlawful 
purpose  is  invalid. 

In  some  jurisdictions  the  purpose  for  which  a  trust  may  be 
created  are  sufRciently  designated  by  statute.  In  such  juris- 
dictions a  trust  can  not  be  created  for  any  other  purpose.^^ 

'     80  Sims  V.   Sims,  94  Va.   580.  84  Brown  v.   Brown    (Ky.),   18   S. 

81  Trustees  of  Amherst  College  v.  W.  .521  ;  13  Ky.  Law  Reporter,  808. 
Ritch,  151  N.  Y.  282.  s^  See  Sec.  610. 

82  Gore  V.  Clark,  37  S.  C.  537 ;  20  *  See  Chapter  XXVIII. 

L.  R.  A.  4G5.  ^^  Bennalack    v.     Richards,      116 

83  Trustees  of  Amherst  College  v.  Cal.  405  (thus  in  California  the 
Ritch,  151  N.  y.  282:  Gore  v.  Clark, 

37  S.  C.  537 ;  20  L.  R.  A.  465. 


LAW    OF     WILLS.  723 

A  bequest  in  trust  for  purposes  which  can  not  be  carried 
out  is,  as  we  have  seen,  either  regarded  as  invalid®"^  or  is  con- 
sidered as  a  resulting  trust  for  testator's  heirs  and  next  of 
kin.^^ 

§622.     Extent  of  interest  of  beneficiary. 

The  nature  and  extent  of  the  interest  given  to  a  cestui  que 
trust  under  a  will  are  to  be  determined  from  the  will  itself, 
and  can  not  be  modified  by  the  subsequent  exercise  of  powers 
of  conversion,  except  in  accordance  with  the  terms  of  the 
will.s^ 

A  gift  in  irust  of  all  the  property  coming  to  one  under  a 
will  includes  not  merely  the  property  devised  directly,  but 
also  property  devised  by  way  of  remainder.^"  And  a  pro- 
vision adding  a  certain  amount  to  an  estate  already  given  in 
trust,  gives  the  addition  upon  the  same  trusts.^^ 

A  devise  to  testator's  children  in  trust  for  their  children 
creates  no  benrficial  interest  in  the  children  of  testator,  al- 
though subsequently  he  refers  to  one  of  these  devisees  in  trust 
as  a  "child's  portion."  ^^ 

A  gift  in  trust  for  the  benefit  of  two  or  more  legatees  is 
ordinarily  to  be  treated  as  a  separate  trust  for  the  use  of  each 
beneficiary,  and  not  a  joint  trust  for  the  use  of  all  f^  espe- 
cially where  construing  the  trusts  as  one  joint  trust  would 
violate  the  rule  against  perpetuities.®* 

statute),   in   enumerating   the  pur-  so  Shaw  v.  Eckley,  169  Mass.  119. 

poses    for    which    a    trust    may    be  9i  Lejee's  Estate,  181  Pa.  St.  416. 

created,  does  not  authorize  a  trust  92  Mims  v.  Maeklin,  53  S.  C.  6. 

to  sell  property,  and  no  such  trust  93  Stein    v.    Stein,    79    Md.    464; 

can   be   created   in   California).  Weston    v.    Massachusetts    General 

87  liigersoll's  Will,  131  N.  Y.  Hospital,  169  Mass.  76;  47  N.  E. 
573.  444;    Dean   v.   Mumford,    102   Mich. 

88  Trustees  of  Amherst  College  v.  510;  Morse  v.  Macrum,  22  Or.  229. 
Ritch,  151  N.  Y.  282.     See  Sec.  617.  o*  Dean    v.    Mumford,    102    Mich. 

s»  Wilson  V.  Wright,  91  Ga.  774;       510. 
Reed  v.  Davis,  95  Ga.  202. 


724  LAW     OK    WILI^S. 

Where  no  restriction  is  imposed  by  will,  a  beneficiary  of 
a  trust  may  devise  his  estate,^^  or  sell  it.^^  The  purchaser, 
however,  takes  no  greater  interest  than  the  beneficiary  from 
whom  he  bought.  Accordingly  if  the  will  provides  for  re- 
investment of  the  trust  funds  in  the  discretion  of  trustees, 
the  purchaser  can  not  prevent  such  reinvestment.^'^ 

§623.     Accumulations. 

A  trust  for  the  accumulation  of  the  income,  which  does  not 
violate  the  rule  against  perpetuities,  nor  the  local  statute  of 
accumulations,  is  valid.^^  Thus  a  gift  of  the  income  of 
$20,000  to  testator's  son  for  life  and  of  the  remainder  of  per- 
sonal property  after  the  death  of  testator's  widow  to  a  trustee 
to  hold  in  trust  to  be  paid  over  at  the  death  of  the  son  to  cer- 
tain persons,  was  held  to  be  a  direction  for  accumulation  of 
all  the  income  arising  from  the  joroperty  after  the  pajnnent 
of  the  income  of  $20,000.^^ 

A  gift  in  trust  to  apply  the  income  to  the  pa^anent  of  cer- 
tain mortgages  was  held  to  last  not  merely  until  the  mort- 
gages were  satisfied,  but  also  until  the  amount  which  was 
taken  from  the  principal  of  such  gift  was  accumulated  from 
the  income,  so  that  the  princij^al  should  ultimately  be  un- 
touched.^'^^^ 

§624.     Separate  estates  of  married  women. 

In  jurisdictions  where  a  husband  has  still,  by  common  law, 
certain  property  rights  in  his  wife's  realty  and  personalty, 
other  than  curtesy  or  dower,  equity  recognizes  and  protects 
property  devised  or  granted  to  a  married  woman  free  from 
the  control  of  her  husband.  This  equitable  estate  is  known 
as  a  married  woman's  separate  estate. 

95Boies's  Estate,  177  Pa.  St.  190.  (1897);    47    N.    E.    413;    Eldred   v. 

96Kean  v.  Kean   (Ky.),  18  S.  W.  Shaw,  112  Mich.  237;   see  Sec.  638, 

1032.  et  seq. 

97  Dickison   v.   Ogden,   —  Ky.  —  oo  Brown    v.    Wright,    168    Mass. 

(1890) ;   12  S.  W.  191.  506    (1897)  ;  47  N.  E.  413. 

98 /n  re  Mason  ( 1891 ) ,  3  Ch.  467  ;  loo  Hart  v.  Allen,  166  Mass.  78. 
Brown    v.    Wright,    168    Mass.    506 


LAW    OF    WILLS. 


725 


1^0  set  form  of  words  is  nec^^sary  in  a  will  to  create  a 
separate  estate.  Any  expression  of  testator's  intention  to 
free  the  property  devised  from  the  legal  rights  of  the  hus- 
band is  given  full  effect  by  treating  her  estate  in  the  property 
devised  as  her  separate  estate.^  ^^ 

The  question  whether  a  separate  estate  is  created  is  one  of 
testator's  intention.  Hence  the  use  of  the  words  "free  from 
her  husband's  control,"  or  other  words  of  similar  character, 
is  not  conclusive  in  determining  the  character  of  the  estate.^ °^ 
Thus  where  testator's  intention  is  solely  to  protect  the  interest 
of  the  beneficiary  if  she  should  marry,  and  during  minority, 
it  was  held  that  she  had  an  absolute  estate  on  coming  of  age 
when  unmarried.^  ^^ 

So  where,  in  addition  to  words  which  by  themselves  might 
create  a  separate  estate,  the  devise  was  expressly  stated  to 
be  •'absolutely  and  in  fee  simple,"  and  testator's  property  was 
so  invested  in  valuable  unimproved  realty  that  if  a  separate  es- 
tate was  created  the  devise  would  be  of  little  or  no  value,  it 
has  been  held  that  a  fee  simple  and  not  a  separate  estate  was 
created.^  ^^ 

Testator's  intention  to  create  a  separate  estate  must  ap- 
pear on  the  face  of  the  will.  It  can  not  be  presumed  from  a 
devise  to  a  woman  and  her  children  that  a  separate  estate 
was  intended.^  °^ 


101  Easberry  v.   Harville,   90   Ga.  rate    estate).    Dezendorf    v.    Hum- 

530    (a  devise  to  a  married  woman  phreys,    95   Va.    473    (a   devise   "to 

"in  her  own  right,"  and  a  devise  to  her  sole  and  separate  use,"  held  to 

her    "in    her    own    right    free    from  create  a  separate  estate ) . 

the  debts  and  contracts  of  her  pres-  102  MacConnell  v.  Wright,  150  Pa. 

ent   or   any   future   husband,"   were  St.    275 ;    Meacham   v.    Graham,    98 

both    held    to     create     separate    es-  Tenn.  190;   39  S.  W.   12. 

tates).  103  Meacham  v.  Graham,  98  Tenn. 

Lushy  V.  Taylor   (Ky.),  30  S.  W.  190    (1897)  ;    39   S.  W.   12. 

396;    17   Ky.   L.   Rep.   65;    Small  v.  lo*  MacConnell    v.    Wright,      150 

Field,   102   Mo.    104    (to   a  married  Pa.   St.   275,   distinguished  in  Hays 

woman  "for  the  sole  use  of  herself  v.  Leonard,   155  Pa.  St.  474,  where 

and  her   ehild'-en.")    Hays  v.   Leon-  the   words    prima   facie    creating   a 

ard,  155  Pa.  St.  474   (a  devise  to  a  separate   estate    were   not   modified 

married   woman    "to   her    sole    and  by  the  context, 

separate  use"  held  to  create  a  sepa-  los  Hixey  v.  Deitrick,  85  Va.  42. 


726  LAW     OF     WILLS. 

A  devise  to  women  "in  their  own  rights"  does  not  create 
an  equitable  separate  estate.^ ^^ 

In  some  jurisdictions  property  given  to  a  married  woman  as 
her  separate  estate  becomes  hers  absolutely  upon  the  termination 
of  coverture.^"'  In  most  jurisdictions  it  is  provided  by  statute 
that  a  married  woman  shall  retain  her  own  property  upon  mar- 
riage (subject,  of  course,  to  her  husband's  right  of  curtesy  or 
dower)  as  if  she  were  unmarried.^^^  Under  such  statutes  a 
devise  to  one  "for  her  sole  use  and  comfort  during  her  natural 
life  and  to  her  heirs  and  assigns  forever"  passes  a  fee.^*^^ 

106  Merrill  v.   Bullock,   105  Mass.  woman   and    her    husband    and   the 

486;   Leete  v.  State  Bank,   141   Mo.  survivor  of  them  was  held  not  wlth- 

574;  Hart  v.  Leete,  104  Mo.  315.  in    that    rule.      Phelps    v.    Simons, 

lOT  Martin    v.    Fort     (Tenn.),    83  159  Mass.  415. 

Fed.   19;   Harding  v.  St.  Louis  Life  loo  Kendall    v.    Clapp,    163    Mass. 

Insurance  Co.  2  Tenn.  Ch.  465.  69;    Cresaey  v.   Wallace,  66  i^".  K. 

108  But    a    devise    to    a     married  566. 


LAW    OF     WILLS.  *  ^* 


CHAPTER  XXVIII. 

THE  RULE  AGAINST  PERPETUITIES,  AND  CHAR- 
ITABLE TRUSTS. 


§625.     Perpetuities. — General  discussion. 

Among  the  restraints  upon  testamentary  power  is  a  clast 
of  restrictions  which  apply  to  wills,  deeds,  powers  and  all  othei 
instruments  by  which  estates  in  property  may  be  created. 
This  is  the  class  of  restrictions  which  is  sometimes  rather 
vaguely  referred  as  created  by  the  rules  against  perpetuities. 
There  rules  ought,  on  the  one  hand,  to  be  considered  in  con- 
nection with  restraint  upon  testamentary  powers,  for  they 
affect  the  validity  of  a  great  many  wills  and  impose  a  very 
serious  obstacle  in  many  cases  to  the  fulfillment  of  the  wishes 
of  the  testator;  but  on  the  other,  they  are  so  involved  with 
questions  of  construction  that  it  seems  better  to  discuss  them 
at  this  point  in  connection  with  the  rules  controlling  the  na- 
ture of  the  estate  created,  and  with  trusts. 

Under  the  restraints  created  by  the  rules  against  perpetu- 
ities are  grouped  three  topics  which  must,  for  purposes  of 
convenience,  be  discussed  separately.  These  are:  (1)  Per- 
petuities in  the  technical  sense,  that  is,  unlawful  postpone- 
ments of  the  vesting  of  estates;  (2)  Perpetuities  in  the  pop- 
ular sense,  that  is,  unlawful  restraints  on  alienation;  and  (3^) 
Unlawful  accumulations  of  property. 

The  same  devise  of  property  is  often  a  violation  of  the  rules 
on  more  than  one  of  these  topics,  and  to  this  fact  is  due  the 


728  LAW     OF     WILLS. 

occasional  confusion  between  these  different  subjects  to  which 
text-writers  and  courts  have  been  liable. 

These  rules,  furthermore,  are  not  matters  peculiar  to  the 
law  of  wills,  but  apply  equally  to  all  conveyances  of  property 
of  whatever  kind ;  and  they  are  topics  of  such  vast  scope  that 
a  thorough  discussion  of  them  here  would  expand  this  work 
far  beyond  the  limits  assigned  to  it. 

An  elementary  discussion  of  this  subject  will  therefore  be 
undertaken  here;  and  for  an  exhaustive  investigation  the 
reader  will  be  referred  to  the  excellent  special  works  upon  that 
subject. 

§626.     Perpetuities. — Definition  and  application. 

As  the  term  "perpetuity"  is  an  ambiguous  term  in  law,  its 
different  meanings  must  be  distinguished  carefully,  in  order 
to  avoid  confusion.  In  the  technical  sense  a  perpetuity  is  a 
grant  of  property  "wherein  the  vesting  of  an  estate  or  in- 
terest is  unlawfully  postponed ;  and  they  are  called  perpetu- 
ities not  because  the  grant  as  written  would  make  them  per- 
petual, but  because  they  transgress  the  limits  which  the  law 
has  set  in  restraint  of  grants  that  tend  to  a  perpetual  suspense 
of  the  title  or  its  vesting."  ^ 

This  technical  meaning  of  Perpetuity  will  be  considered 
first;  and  this  meaning  must  be  carefully  distinguished  from 
the  rules  against  restraint  of  alienation.^  The  rule,  in  this 
sense,  refers  solely  to  the  time  when  the  estate  under  considera^ 
tion  is  to  vest,  and  has  nothing  at  all  to  do  with  its  termina- 
tion.^ So  that  if  an  estate  is  to  vest  at  all  within  the  time 
fixed  by  statute,  the  fact  that  it  may  last  beyond  the  time 
fixed  by  statute  does  not  avoid  the  estate  under  the  rule  against 

1  Johnston's    Estate,    185    Pa.    St.  169   111.   432;    169   111.   472;    Daven- 
179,     quoting    Philadelphia    v.     Gi-  port    v.    Kirkland,      156     111.      169; 
rard's   Heirs,    45    Pa.    St.    9 ;    Law-  Brool^s  v.  Belfast,  90  Me.  318 ;  Hill- 
renee's    Estate,    136    Pa.    St.    354;  yer  v.  Vandewater,  121  N.  Y.  681 
112  Vx.  A.  85.  Johnston's  Estate,  185  Pa.  St.  179 

2  Brooks   V.    Belfast,   90   Me.    318.  Lawrence's  Estate,  136  Pa.  St.  354 

3  Chamberlayne  v.  Brockett,  L.  R.  11  L.  R.  A.  85:  Webster  v.  Wiggin, 
8    Ch.    206;    Riiasell    v.    Allen.    107  19  R.  I.  73;  28  L.  R.  A.  510. 

LT.    S.   163;    Ingraham  v.   Ingraham, 


LAW     OF     WILLS. 


729 


perpetuities.^  On  the  other  hand,  it  does  not  concern  itself 
with  the  time  at  which  the  estate  granted  is  to  take  effect  in 
possession,  but  solely  with  the  time  at  which  such  estate  vests.' 

When  the  question  of  the  validity  of  a  will  under  the  rules 
against  perpetuities,  or  in  restraint  of  alienation,  is  under 
consideration,  the  state  of  facts  existing  at  testator's  death 
controls,  and  not  that  existing  at  the  date  of  the  execution  of 
the  will.^ 

When  a  will  creates  a  power,  the  question  whether  the  estate 
created  in  pursuance  of  the  power  violates  the  rule  against  per- 
petuities is  to  be  determined  as  of  the  date  of  the  will,  and 
not  of  the  time  Avhen  the  power  was  executed.''^  And  where  a 
deed  creates  a  power,  which  is  exercised  by  a  will,  the  ques- 
tion of  the  violation  of  the  rule  against  perpetuities  is  to  be 
solved  by  referring  to  the  condition  of  affairs  at  the  date  of 
the  deed.* 

Where  the  devise  is  dependent  on  future  governmental  ac- 
tion, subsequent  to  testator's  death,  control  of  which  is,  of 
course,  impossible,  and  such  a  devise  will  be  in  violation  of 
the  rule  against  perpetuities  or  restraints  on  alienation  unless 
the  government  does  so  act,  it  is  held  void.^ 

§627.     Origin  of  rule. 

Under  the  early  common  law  there  was  practically  nothing 
upon  which  the  rule  could  operate,  and  the  rule  itself  was 
therefore  non-existent.  A  freehold  estate  could  not  be  created 
to  begin  in  the  future  without  the  intervention  of  some  inter- 
mediate estate,  the  determination  of  which  before  the  sub- 
sequent estate  could  take  effect  in  possession  would  defeat 
such  subsequent  estate,  and  by  means  of  collusive  matters  of 

4  Howe    V.    Hodge,    152    111.    252;  7  Lawrence's    Estate,    136    Pa.    St. 

Madison    v.    Larmon,    170    111.    65;  354;    11   L.   R.  A.  85. 

Lawrence    v.    Smith,    1G3    111.    149,  s  Dana  v.  Murray,  122  N.  Y.  604. 

3  Madison  v.  Larmon,  170  111.  65;  9  People  v.   Simonson,   126  N.  Y. 

Rhodes's  Estate,   147  Pa.  St.  227.  299;    Fowler    v.    Ingersoll,    127    N. 

6  Whitney  v.  Dodge,  105  Cal.  192 ;  Y.  472. 


Mullreed  v.  Clark,  110  Mich.  229 
Fargo  V.  Squiers,  154  N.  Y.  250 
Dana  v.  Murray,   122   N.   Y.   604. 


Contra,  Field  v.  Drew  Theological 
Seminary,  41  Fed.  371. 


730  LAW    OF    WILLS. 

record,  such  as  fines  and  recoveries,  it  was  in  the  power  of  the 
particular  tenant  in  tail  to  bar  the  reversion  after  his  estate. 

But  when  long  terms  of  years  began  to  be  employed  as  af- 
fording a  means  of  family  settlements,  and  when  trust  estates 
and  devises  by  ^vill  began  to  be  employed  for  similar  pur- 
poses, and  estates  were  thereby  created  which  were  not  de- 
pendent upon  intermediate  estates,  the  courts  awoke  to  the 
fact  that,  unless  some  new  restraints  were  imposed  on  aliena- 
tions and  devises,  property  would  in  a  few  generations  be  so 
encumbered  and  involved  as  to  be  practically  inalienable 
thereafter.  By  judicial  legislation,  originally  in  the  courts 
of  chancery,  and  subsequently  acted  upon  on  analogy  by  the 
law  courts,  the  rule  against  perpetuities  was  gradually 
evolved. 

The  old  rule  against  a  possibility  upon  a  possibility,  was 
an  attempt  to  prevent  perpetuities,  and  is  practically  enforced 
by  the  modern  rule.^*^ 

§628.     Original  rule  and  statutory  modifications. 

As  finally  settled  upon  by  the  courts,  the  rule  against  per- 
petuities was  as  follows:  jSTo  interest  subject  to  a  condition 
precedent  is  good  unless  the  condition  is  to  be  fulfilled,  if  at 
all,  within  twenty-one  years  after  some  life,  or  lives,  in  being 
at  the  creation  of  the  estate.-^  ^ 

The  number  of  lives  upon  which  the  vesting  of  the  estate 
depends  is  immaterial  if  all  the  lives  are  in  existence  at  the 
time  the  estate  is  created.^  ^  To  this  length  of  time  is  added 
.the  period  of  gestation,  whenever  gestation  in  fact  exists, 
whether  it  is  the  gestation  period  of  a  person  in  ventre  sa 
mere,  who  is  the  person  in  being  whose  life  determines  the 

10  Zn  re  Frost,  L.  R.  43  Ch.  D.  worth.  171  Mass.  496;  Whitby  v. 
246;  Whitby  v.  Mitchell,  C.  A.  L.  Mitchell  (C.  A.),  L.  R.  44  Ch. 
R.  44  Ch.  D.  85.  D.    85;    In    re   Hargreaves    (C.    A., 

11  Madison    v.    Larmon,    170    111.  L.  R.  43  Ch.  D.  401. 

65,    quoting    Gray    on    Perpetuities,  12  xMadison    v.    Larmon,    170    111. 

Sec.  201 ;  Terrell  v.  Reeves,  103  Ala.       65. 
264;     16    So.    54;    Leonard    v.    Ha- 


LAW    OF    WILLS. 


131 


estate/^     or  the  gestation  period  of  the  person  whose  minority 
is  the' twenty-one  year  period  after  a  life  in  being.^^ 

By  the  wording  of  the  rule  it  can  not  apply  to  vested  es- 
tates i^^  but  it  does  apply  to  every  sort  of  property  right  other 
than  a  vested  interest,  such  as  a  contingent  remainder  •/«  or 
an  executory  devise  ;i^  and  it  includes  both  legal  and  equitable 
estates.-^  ^ 


§629.     Effect  of  violation  of  rule. — Examples. 

A  devise  in  violation  of  the  rule  against  perpetuities  is 
void,  and  the  property  passes  to  the  residuary  devisee  or 
legatee,  if  there  are  such,  or  to  the  heir  or  personal  represent- 
ative if  there  are  not,  just  as  if  testator  had  not  included 
such  provision  in  his  will,  or  had  died  intestate  as  to  such 

property.^  ^ 

Where  the  devise  is  one  which  may  or  may  not  vest  withm 
the  time  limited,  it  is  held  to  be  a  devise  within  the  rule  and 
void,  even  though  it  probably  will  vest  within  the  time  lim- 

ited.2o 

In  such  case  the  fact  that  the  person,  to  whose  descendants 
the  perpetuity  is  limited,  is  past  the  age  of  child-bearing,  does 
not  prevent  the  application  of  the  rule  against  perpetuities.^^ 


13  Phillips    V.    Herron,    55    O.    S. 
478. 

14  Long  V.  Blackall,  7  T.  R.  100; 
GoUiver  v.  Mickett,   1   Wils.   105. 

15  Terrell  V.  Reeves,  103  Ala. 
264;  16  So.  54;  Johnson  v.  Webber, 
65  Conn.  501;  Lawrence  v.  Smith, 
163   111.    149. 

16  Madison    v.    Larmon,    170    111. 

S5. 

17  Carney    v.    Kain,    40    W.    Va. 

458. 

isBigelow  V.  Cody,  171  111.  229; 
Booth  V.  Baptist  Church,  126  N.  Y. 

215. 

19  In  re  Wood  (1894),  3  Ch.  381; 
In  re  Daveron  (1893),  3  Ch.  421; 
Walker ly's  Estate,  108  Cal.  627; 
Morris  v.  Boiled,  65  Conn.  45;  Bel- 
field  V.   Booth,   63  Conn.   299;   Tin- 


gier  V.  Chamberlain,  71  Conn.  466, 
Lawrence  v.  Smith,  163  111.  149 
Hamlin  v.  Mansfield,  88  Me.  131 
State  V.  Holmes,  115  Mich.  456 
Johnston's  Estate,  185  Pa.  St.  179 
Adams   v.    Farley    (Miss.),    18    So. 

390. 

20  Jn    re    Bowen     (1893),    2     Ch. 

491;     Tingier    v.    Chamberlain,    71 

Conn.    446;    Landers     v.     Dell,     61 

Conn.  189;  26  Atl.  103;  Lawrence  v. 

Smith,    163    111.    149;      Palmer     v. 

Union  Bank,   17  R.  L  627. 

Contra,   In  re  Russell    (1895),   2 

Ch.  698. 

21 7n    re    Powell     (1898),    1    Ch. 

227    (the  mother  was  eighty  years 

old).     See  In  re  Dawson   (1888),  39 

Ch.  D.  155. 


732  LAW     OF     WILLS. 

But  where  a  time  within  the  limit  fixed  by  the  rule  is  to 
intervene  between  the  settlement  of  testator's  estate  and  the 
vesting  of  the  gift  over,  such  gift  is  valid  where  a  settlement 
of  decedent's  estate  or  a  sale  of  realty  may  be  had  within  such 
reasonable  time  as  will  bring  the  whole  period  within  the 
time  limited  by  the  rule,  as  the  presumption  is  that  the  ex- 
excutors  or  trustees  will  settle  within  such  reasonable  time.^^ 

So  a  direction  in  a  will  that  the  executors  shall  sell  the 
realty  as  soon  after  testator's  death  as  can  be  done  convenient- 
ly, does  not  create  an  unlaAvful  perpetuity,  as  the  sale  must 
be  had  within  a  reasonable  time.^^ 

§630.     Partial  violation  of  rule. 

If  a  limitation  in  a  will  is  to  vest  within  the  time  allowed 
by  the  rule  against  perpetuities,  it  is  not  avoided  by  the  fact 
that  another  or  an  alternative  provision  in  the  will  is  void 
as  against  perpetuities.^^ 

Thus  a  gift  to  charity,  to  which  the  rule  against  perpetu- 
ities does  not  apply,  is  not  avoided  by  a  direction  that  in  the 
event  that  testator's  nephews  and  nieces  become  poor  and 
needy  the  trustees  shall  support  them  out  of  the  fund  given 
to  charity  even  if  the  second  gift  violates  the  rule.^^ 

But  where  the  void  provision  is  so  closely  connected  with  the 
valid  provision  as  to  be  inseparable  from  it,  the  whole  gift  is 
EA^oided.  Thus  a  devise  for  different  purposes,  one  valid  and  the 
rest  void,  is  invalid  as  to  all  where  the  will  provides  that  "  a 

22 /u   re  Lord   Sudeley    (1894),   1  mond,    65     Conn.     492;      Howe     v. 

Ch.  334;  Belfield  v.  Booth,  63  Conn.  Hodge,    152    111.   252;    Ingraham   v. 

299;   Atwater  v.   Russell,  49  Minn.  Ingraham,    169    III.    432;     169    111. 

22    (to  be  sold  as  soon  as  trustees  472;  In  re  Stickney's  Will,  85  Md. 

can  get  a  reasonable  price,  and  in  79;    35    L.    R.   A.    693;    Hascall    v. 

any  event  in  ten  years).  King,    162    N.    Y.    134;    Mears    v. 

23  Hope    V.    Brewer,    136    N.    Y.  Mears,  15  O.  S.  90. 

126;   18  L.  R.  A.  458;  Cooper's  Es-  25  Ingraham    v.    Ingraham,    169 

tate,   150  Pa.   St.  576.  HI.    432;    169    HI.    472     (this    visw 

24 /«  re  Lo^vman  (C.  A.),   (1895),  was    taken    since    the    gift    to    the 

2   Ch.   348;    Halsey  v.  Goddard,   86  nephews   and   nieces  was  incidental 

Fed.    25;    Perkins     v.     Fisher,     59  to  that  of  charity)  ;  Mears  v.  Mears, 

Fed.    801;;    Terrell    v.    Reeves,    103  15  0.  S.  90. 
Ala.  264;  16  So.  54-  .Tohnson  v.  Ed- 


LAW     OF     WILLS.  '^ 

part"  of  the  property  devised  shall  be  devoted  to  the  valid  pur- 
pose, without  saying  what  specific  part  was  intended.^^ 

When  successive  gifts  are  made,  some  of  which  are  in  vio- 
lation of  the  rule  against  perpetuities  and  others  of  which 
are  not,  the  question  of  the  validity  of  the  gifts  which  are  not 
themselves  in  violation  of  the.  rule  against  perpetuities  de- 
pends upon  the  closeness  of  the  connection  between  the  in- 
valid gifts  and  the  other  gifts.  If  consistent  with  the  general 
scheme  of  the  will,  the  valid  gifts  can  be  separated  from 
the  invalid,  this  will  be  done,  and  the  valid  gifts  will  be  sus- 
tained, while  the  gifts  in  violation  of  the  rule  will  be  de- 
feated.2^  jf^  on  the  other  hand,  the  valid  and  invalid  gifts 
are  so  closely  connected  by  will  that  it  is  evidently  testator's 
intention  that  all  shall  stand  or  fall  together,  the  invalidity 
of  one  gift  will  defeat  the  others.^s  Thus,  where  a  devise  in 
trust  for  seventy-five  years  is  not  within  the  rule,  but  is  created 
simply  as  a  means  of  effecting  a  gift  over  at  the  end  of  the 
seventy-five  year  period,  the  valid  term  will  fail  together  with 
the  invalid  gift  over.^^ 

§631.     Examples  of  gifts  not  within  the  rule  against  perpetuities. 

Bequests  and  devises  which  are  to  vest  at  the  death  of  a 
person  in  being,  are  always  held  to  be  valid  as  far  as  this 
rule  is  concerned.^^ 

26  Kelly  V.  Nichols,  17  R.  I.  306.       473;  Johnston's  Estate,  185  Pa.  St. 

27  Perkins  v.  Fisher,  59  Fed.  801 ;        179. 

Beers  v.   Narramore,   61    Conn.    13;  29  Johnston's  Estate,   185   Pa.   St. 

Ketchum    v.    Corse,    65    Conn.    85;  179. 

Bullard  V.  Shirley,   153  Mass.  559;  ao /»    re    Powell     (1898),    1    Ch. 

12    L.    R.    A.    110;    Underwood    v.  227;  Hendy's  Estate,  i;8  Cal.  656 

Curtis,    127    N.    Y.    523;    Hatch    v.  Healy    v.    Healy,    70     Conn.     467 

Hatch,  31  W.  L.  B.  57;  Lawrence's  Johnson  v.   Webber,   65   Conn.   501 

Estate',   130   Pa.   St.   354;    11   L.  R.  St.   John   v.    Dann.    66    Conn.    401 

j^    35,  Parker   v.   Churchill,    104   Ga.   122 

28  Potter  V.  Couch,  141  U.  S.  296;  Wentworth  v.  Fernald,  92  Me.  282 

Lockridge    v.    Mace,    109    Mo.    162;  Schermerhorn  v.  Cotting,  131  N.  Y, 

Lockridge     v.     Mariner,     109     Mo  48 ;  Hillen  v.  Iselin,  144  N.  Y.  365 

169;    Butterfield's   Will,   133   N.   Y.  Stevenson  v.   Evans,   10   0.   S.   307 


734  LAW    OF    WILLS. 

So  a  bequest  in  trust,  the  income  to  go  to  testator's  wife 
for  life,  then  to  her  two  children  till  they  reached  the  age 
of  twenty-five,  was  upheld,  the  children  being  in  existence  at 
testators'  death,  when  the  will  took  affect,  as  such  bequest 
must  vest  during  a  life  in  being.^^ 

And  where  a  devise  is  limited  to  one  for  life,  and  over  to 
his  heirs  as  they  come  of  age,  the  rule  against  perpetuities  is 
not  violated  f^  nor  where  a  devise  is  to  take  effect  after  the  death 
of  the  wife  and  daughter  of  testator  and  after  twenty  years  af- 
ter testator's  death. ^^  And  a  bequest  in  trust  for  A  and  'liis 
family,"  until  he  shall  pay  certain  specified  debts  and  then 
the  balance  of  the  fund  to  him,  is  valid,  as  the  word  "family" 
is  so  construed  as  to  exclude  all  but  those  in  being  or  their 
children.^^ 

And  a  devise  after  the  death  of  the  taker  of  the  life  estate 
to  his  "heirs"  or  "legal  representatives,"  is  upheld.  The  term 
"legal  representatives"  is  construed  as  meaning  "executors  or 
administrators,"  and  the  estate  passes  by  descent  and  not  by 
purchase.^^ 

Where  a  devise  is  made  to  one  for  life,  and  if  he  die  "with- 
out issue,"  or  "childless,"  or  "without  being  heirs  of  their 
body,"  then  over  to  another,  the  first  question  presented  is 
one  of  construction.  Is  the  devise  one  limited  over  if  at  the 
death  of  the  person  named  as  taking  the  first  estate  he  has 
no  living  descendants,  or  is  it  a  devise  over  if  at  any  time 
thereafter  the  line  of  descendants  of  the  first  taker  should 
fail?     The  first  contingency  is  spoken  of  as  a  "definite  fail- 


Lennig's   Estate,    154   Pa.   St.   209;  32  Earnshaw   v.   Daly,    1    App.   D. 

Armstrong    v.    Douglass,    89    Tenn.  C.    218;    Siddall's    Estate,    180    Pa. 

219;  10  L.  R.  A.  85.  St.  127;  Hughes  v.  Hughes,  91  Wis. 

So  a  devise  to  A  for  life  and  then  138;    Otterback   v.   Bohrer,   87    Va. 

to   his   children   or   to   the   children  548. 

lawfully    begotten    of    the    body    of  33  Potter  v.  Couch,  141  U.  S.  296. 

such   children   is   valid,   as   the  gift  34  St.    John    v.    Dann,    66    Conn, 

is  to  the  class  existing  at  the  death  401. 

of    the    life    tenant.      Stevenson    v.  35  Tarrant    v.    Backus,    63    Conn. 

Evans,    10   0.    S.    307.  277;   63  Conn.  277;  Johnson  v.  Ed- 

3iHondy's    Estate,    118    Cal.  656  ;  niond,  65  Conn.  492 ;  Healy  v,  Healy, 

Schermerhorn  v.  Cotting,  131  N.  Y.  70  Conn.  467. 
48. 


7S5 

LAW    OF    WILLS. 


lire  of  issue,"  the  second  as  an  ''indefinite  failure  of  issue. 
If  the  devise  is  over  on  a  definite  failure  of  issue,  it  vests  im- 
mediately on  the  death  of  a  person  in  being,  and  is,  therefore, 

not  too  remote.^'^ 

So  a  devise  to  trustees  to  pay  to  a  charitable  corporation 
the  income  of  testator's  estate  after  the  death  of  his  wife  and 
all  his  children,  until  the  aggregate  of  the  payments  is  twenty 
thousand  dollars,  and  then  to  another  charitable  corporation 
nntil  the  aggregate  amount  of  these  payments  is  twenty  thou- 
sand dollars,  does  not  violate  the  rule  against  perpetuities 
where  the  income  from  the  estate  is  such  that  the  entire  sums 
will  be  paid  within  twenty-one  years  after  the  death  of  the 
last  surviving  member  of  testator's  immediate  family. 

But  where  the  words  "without  issue"  are  held  to  mean  an  in- 
definite failure  of  issue,  a  devise  over  upon  such  failure  is 
void,  since  it  may  not  vest  till  after  a  life  or  lives  m  being 

QQ 

and  twenty-one  years. 

The  words  "die  without  leaving  issue"  were,  as  we  have 
seen,  held  at  common  law  to  mean  prima  fane  an  indefinite 
failure  of  issue.^^ 
§632.     Examples  of  gifts  Within  the  rule  against  perpetuities. 

Where  the  original  rule  against  perpetuities  is  in  force,  and 

no  estate  can  be  so  devised  as  to  vest  at  a  period  more  remote 

„^     ,  St     119-    Boutelle   v.    City    Savings 

r^TiP-tliird    to    wife    of    such    child),  f^-     vv.    i",  ,   ,  i.-     „ 

Terrel      V     Reeves.   103    Ala.   264;  388    ("should  I  at  any  fu  ure  time 

16  So.  54   (devise  to  surviving  chil-  fail  to  have  heirs  hy  -^  ^-1^ ^  " 
dren  and  "descendants"  of  such  as  3s  Lennig's    Estate,     154     Pa.    St. 

are    dead;     if    none    ---^'^^-^  ''t  Lurman    v.    Hubner,    75    Md. 
over);    Glover   v.    Condell,    163   ill.  ^^'' 

566    (die   "without   living   heirs   of  268;   Rea  v.  Bell.     47  Pa.  St.   118, 

their  body")  ;  Strain  v.  Sweeny,  163  Hackney  v.  Tracy    137  ^^;^J^'^'\ 
Til    603    (d  e  "without  issue  of  his  -  Hackett  v.   Tracy,   137   Pa.   St. 

bodv   )       Madisl    V.    Larmon,    170  53    (even  when   the  limitation  over 

mM-    wlbrenner's   Estate,   173  was  to  one  living,  designating  him 

Pa.   St.   440    (die  "without  leaving  by  name)  ;   see  Sec.  591. 


issue 


Morehead's  Estate,  180  Pa. 


736  LAW    OF    WILLS. 

than  after  a  life  or  lives  in  being  and  twenty-one  years,  a  de- 
vise to  vest  at  the  end  of  a  fixed  period  of  time,  without  re- 
o-ard  to  lives  in  being,  is  void  under  the  rule,  where  the  time 
fixed  exceeds  twenty-one  years,  even  though  the  aggregate 
term  will  probably  be  less  than  a  life  in  being  and  twenty- 
one  years.^^ 

A  devise  to  vest  when  the  children  of  persons  in  being 
(which  children  may  not  all  be  in  being  at  the  death  of  tes- 
tator) are  twenty-five,  is  too  remote.^-  So  a  devise  to  children 
born  or  to  be  born,  for  their  lives,  is  void,  since  it  may  ex- 
tend past  any  life  in  being  and  twenty-one  years.^^ 

And  a  devise  to  take  effect  upon  the  happening  of  a  future 
event  which  is  not  dependent  on  any  life  or  lives  in  being,  and 
which  may  or  may  not  happen  before  the  time  limited  by  the 
rule  against  perpetuities,  is  void  under  the  rule.'*'* 

Where  a  gift  to  the  "wife"  of  some  one  other  than  testator 
is  held  to  include  a  wife  married  after  testator's  death,  it  is 
held  in  some  jurisdictions  that  such  a  gift  violates  the  rule 
against  perpetuities,  since  it  is  possible,  but  not  probable,  that 
such  gift  may  not  vest  within  a  life  or  lives  in  being  and 
twenty-one  years. 


•ti/M,  re  Daveron    (1893),     3  Ch.  2   Ch.   381    (a   devise  to  vest  when 

421       (after       forty-nine       years);  certain  gravel  pits  owned  by  testa- 

Walkerly's  Estate,  108  Cal.  627   (af-  tor   in   freehold   should   be   exhaust- 

ter    twenty-five    years)  ;     Stephen's  ed)  ;    In    re    Lord    Stratheden    and 

Succession,  45  La.  Ann.  962;   John-  Campbell     (1894),    3    Ch.    265     (a 

ston's  Estate,   185  Pa.   St.   179    (af-  bequest  to   a   volunteer   corps   upon 

ter  seventy- five  years ) .  the   appointment   of   the   next   lieu- 

i'^Jn    re    Mervin     (1^91),    3    Ch.  tenant-colonel):    Hamlin    v.    Mans- 

197;    Lawrence    v.    Smith,    163    111.  field,  88  Me.   131    (a  devise  to  take 

149;     Armstrong    v.    Douglass,    89  effect   on    the    cessation   of    a    busi- 

Tenn.    219:    10    L.    R.    A.    85     (at-  ness,  the  business  to  be  carried  on 

tempt  to  entail  by  settlement).  as   long   as   the   son   of   testator   or 

43  Thomas  v.  Gregg,  76  Md.   169;  any  of  his  children  should  wish  to 

Dayton    v.    Phillips,    28    W.    L.    B.  carry  it  on)  :  Dana  v.  Murray,  122 

327.  N.  Y.  604;   Palmer  v.  Union  Bank, 

44 /n  re  Gyde,  78  Law  T.  R.  449  17  R.  I.  627    (a  devise  over  if  trus- 

(a  bequest  to  vest  when  land  should  tees  should  omit  to  execute  the  trust 

be    given    or    obtained    for    a    speci-  for  a  year), 
fied  purpose)  ;  In  re  Wood    (1894), 


LAW    OF    WILLS. 


737 


A  devise  to  "a  widow"  of  A  is  good  if  it  means  his  present 
wife,  and  it  is  so  construed,^^  but  bad  if  it  means  any  wife  he 
may  have  thereafter."**^ 

§633.     Statutory  modifications  of  the  rule  against  perpetuities. 

In  some  states  the  common  law  rule  has  been  modified  by 
statutes,  which  provide  that  an  estate  can  be  devised  only 
in  a  person  in  being  at  the  time  of  making  the  will,  or  his  im- 
mediate issue  or  descendants.  A  statute  of  this  kind  "super- 
sedes inquiry  as  to  the  scope  of  the  common  law  rule  on  the 
subject,"  and  furnishes  a  rule  complete  in  itself.^^ 

The  expression  "time  of  making  the  will,"  is  construed  to 
mean  the  death  of  the  testator."*^ 

In  Connecticut  the  "immediate  issue  or  descendants"  means 
the  children  of  such  as  are  in  being;  and  a  devise  to  "grand- 
children," "heirs,"  and  the  like,  is  held  too  remote.^^  But  in 
Ohio,  though  their  statute  is  copied  from  that  of  Connecticut,^*^ 
the  words  "immediate  issue  or  descendants,"  is  extended  to 
include  grandchildren  of  one  in  being  where  the  parent  of 
such  grandchildren,  who  was  the  child  of  such  person  in  being, 

45  Beers  v.  Narramore,  Gl  Conn.  children  of  testator  in  being;  then 
13_  to     tes-tator's     "grandchilden      and 

46  So  as  to  husband,  In  re  Frost,  their  heirs" )  ;  Ketchem  v.  Corse,  65 
L.  R.  43  Ch.  D.  246.  Conn.   85    (to   the   "heirs  and   legal 

47  Phillips  V.  Herron,  55  0.  S.  representatives"  of  persons  in  be- 
478.  ing)  ;  Johnson  v.  Webber,  65  Conn. 

48  Johnson  v.  Webber,  65  Conn.  501  (a  devise  to  granddaughters 
504.  in  being  for  life,  and  on  their  death 

49Anyn  V.  Mather,  9  Conn.  114;  among  their  children  is  valid:  but 
Jocelyn  v.  Nott,  44  Conn.  55 ;  Leake  a  devise  on  their  death  to  the  "then 
V.  Watson,  60  Conn.  498;  Landers  lineal  descendants"  of  testatrix  is 
V.  Dell,  61  Conn.  189;  23  Atl.  1083  invalid);  Security  Company  v. 
(to  daughter,  on  her  death  to  her  Snow,  70  Conn.  288  (to  the  "law- 
children;  the  issue  of  any  de-  ful  heirs"  of  one  in  being)  ;  Tin- 
ceased  child  to  take  their  parents'  gier  v.  Chamberlain,  71  Conn.  466 
share);  Anthony  v.  Anthony,  55  (to  "those  persons  who  are  the  nat- 
Conn.  256  (to  the  "heirs"  of  one  ural  heirs  at  law  of  my  said  son 
in  beinf)  ;  Beers  v.  Narra-  at  the  time  of  his  decease"), 
more,  61  Conn.  13  (to  "heirs");  so  Harkness  v.  Corning,  24  0.  S. 
Morris  v.   Bolles,   65   Conn.   45    (to  416. 


738  LAW    OF    WILLS. 

dies  before  such  person  in  being  ;^^  and  a  person  m  ventre  sa 
mere  is,  of  course,  a  j^erson  in  being  within  the  meaning  of 
this   statute.^^ 

§634.     Restraints  on  alienation. 

The  general  rules  of  property  law  do  not  recognize  such  an 
anomaly  as  an  estate  of  inheritance,  or  an  absolute  ownership 
of  personalty,  in  which  the  owner  is  restrained  from  alienat- 
ing such  property.  The  whole  history  of  the  law  of  realty 
since  the  Norman  Conquest  is  a  succession  of  struggles  to 
shake  off  restraints  upon  the  free  alienation  of  property  im- 
posed by  the  feudal  system,  and  now  that  the  restraints  im- 
posed by  the  military  organization  of  society  are  done  away 
with,  the  courts  are  very  unwilling  to  allow  the  caprice  of  tes- 
tators to  reimpose  similar  limitations. 

§635.     Extension  of  rule  against  alienation  to  prevent  perpetu- 
ities. 

The  rule  against  restraints  upon  alienation  was  an  entirely 
different  one  from  the  rule  against  perpetuities.  The  latter 
referred  to  the  time  when  the  devise  should  be  vested ;  the 
former  to  the  power  of  the  devisee  over  his  devise  after  it 
had  vested.  The  confusion  between  them  arose  from  the  fact 
that  a  provision  in  a  will  might  be  forbidden  by  both  rules 
at  the  same  time.  Thus,  a  devise  for  a  fixed  space  of  time 
without  a  reference  to  a  life  in  being,  and  to  be  devoted  to  a 
named  purpose  which  would  prevent  alienation,  and  then  over 
to  a  named  beneficiary,  would  be  a  violation  of  both  rules. 

This  confusion  has  been  further  increased  by  the  statutory 
change  in  the  rule  against  perpetuities  which  has  been  made 
in  some  states.  The  common  law  rule  has  been  discarded,  and 
in  its  stead  a  rule  which  with  slight  variations  is  substantially 
that  the  absolute  power  of  alienation  of  a  fee  shall  not  be 

BiMcArthur   v.    Scott,    113   U.  S.  52  Phillips    v.    Herron,    55    O.    S. 

340;    Stevenson  v.   Evans,   10   O.  S.       478. 

307;    Turley    v.    Turley,    11    0.  S. 
173. 


LAW    OF    WILLS. 


739 


suspended  for  a  longer  period  than  during  the  continuance 
of  not  more  than  two  lives  in  being  at  the  creation  of  the  es- 
tate.^2 

In  some  states  a  period  of  minority,  where  minority  exists, 
is  added  to  the  foregoing  period;  in  others,  the  absolute  pe- 
riod of  twenty-one  years  may  be  added.  The  statutes  are  not 
always  the  same  as  to  certain  exceptions  allowed  to  this  rule, 
and  personal  property  is  included  under  some  of  these  stat- 
utes,^^  while  under  others  it  is  not  included,^^  or  alienation 
may  be  restrained  for  any  number  of  lives  in  being  at  the 
death  of  the  testator.'^ ^'  But  with  the  exception  of  these  matters 
of  detail  the  general  principles  of  these  statutes  are  substan- 
tially uniform  in  the  different  states. 

A  recent  California  case  illustrates  the  distinction  between 
the  common  laAv  rule  and  the  statutory  rule.  In  that  case 
testator  bequeathed  bonds  in  trust  to  pay  interest  and  divi- 
dends to  his  granddaughter  for  life,  and  on  her  death  to  her 
children  until  the  youngest  should  reach  his  majority,  when 
the  fund  was  to  be  divided  among  these  children  equally. 
This  bequest  was  void  under  the  statutory  rule  in  force  in 
California,  as  the  power  of  alienation  was  restrained  for  more 
than  lives  in  being,  but  it  was  valid  under  the  common  law 


53  "Our  statute  is  not,  properly 
speaking,  against  perpetuities.  It 
simply  prohibits  restraints  on  alien- 
ation. The  declaration  that  a  fu- 
ture estate  is  void  in  its  creation, 
which  thus  suspends  the  power  of 
alienation,  is  to  the  same  end.  It 
is  void  if  by  any  possibility  it  may 
suspend  the  absolute  power  of  alien- 
ation beyond  the  prescribed  period. 
The  doctrine  of  remoteness  therefore 
hajs  no  materiality  except  as  it 
affects  alienability."  Estate  of 
Cavalry,    119    Cal.    406. 

"The  statute  does  not  prohibit 
all  limitations  of  estates  by  which 
the  power  of  alienation  is  suspend- 
ed, but  permits  a  suspension  of  such 
power,  with  the  restriction  that 
the  suspension  shall  not  continue  be- 


yond the  period  of  lives  in  being 
at  the  creation  of  fhe  limitation, 
and  in  Section  710  defines  this  re- 
striction as  follows.  'Such  power 
of  alienation  is  suspended  when 
there  are  no  persons  in  being  by 
whom  an  absolute  interest  in  pos- 
session can  be  conveyed.'  Conse- 
quently, whenever  there  are  persons 
in  being  by  whom  an  absolute  in- 
terest in  possession  in  the  land 
can  be  conveyed,  the  power  of  alien- 
ation is  not  suspended."  Toland  v. 
Toland,  123  Cal.  140. 

54  Walkerley's    Estate,     108     Cal. 
627. 

55  Tower's   Estate,   49    Minn.    371. 
sePenfield    v.     Tower,     1.    N.    D. 

210. 


740  LAW     OF     WILLS. 

rule.  In  this  case  testator  was  domiciled  in  Pennsylvania 
at  the  time  of  his  death,  and  the  property  disposed  of  was 
personalty.  It  was  held  that  the  bequest  was  controlled  by 
Pennsylvania  law  and  was  valid,  even  in  California  courts.^^ 
The  same  distinction  is  made  in  a  case  where  the  devise  was  in 
violation  of  the  statute  as  to  realty,  but  good  at  common  law 
as  to  personalty  and  such  realty  as  was  to  be  converted  into 
person  alty.^^ 

§636.     Illustrations  of  violations  of  statutory  rule. 

Under  the  rule  against  perpetuities,  as  modified  by  modern 
statutes,  the  question  is  not  primarily  one  of  the  vesting  of 
the  estate,  but  of  the  length  of  time  during  which  the  aliena- 
tion of  the  fee  is  necessarily  prevented.  Thus,  a  devise  which 
is  settled  by  trust  or  otherwise  to  last  forever,  is  clearly  .for- 
bidden by  the  statutory  rule.^^  So  is  a  devise  for  a  fixed 
term  of  years  without  any  reference  to  a  life  in  being.^*^  But 
where  a  suspension  of  the  power  of  alienation  might  have 
been  valid  for  infancy,  a  trust  preventing  alienation  until 
the  youngest  child  should  reach  the  age  of  forty  was  held 
valid  up  to  the  age  of  twenty-one.^^ 

And  where  a  devise  is  measured  by  lives  so  as  to  exceed  the 
number  of  two  lives  in  being  permitted  by  statute  the  devise 

57  Whitney  v.  Dodge,  105  Cal.  named  should  reach  twenty-five, 
192.  and  other  half  till  he  should  reach 

58  Tower's   Estate,   49   Minn.   371.  thirty);    Booth   v.   Baptist   Church, 

59  Brown  v.  Esterhazy,  —  (D.  126  N.  Y,  21.^  (a  bequest  to  a 
C. ),  1897;  25  Wash,  L.  Rep.  478;  church  to  help  pay  its  debts  if  the 
In  re  Bartlett,  163  Mass.  509;  Beur-  church  should  within  two  years 
iaus  V.  Cole,  94  Wis.  617.  raiae   enough   to   pay   its  debts;    if 

60  Cavarly's  Estate,  119  Cal.  406  not,  then  the  bequest  to  lapse  to  the 
(alienation  prevented  till  young-  residuum  of  testator's  estate)  ; 
est  child  should  reach  the  age  of  Haynes  v.  Sherman,  117  N.  Y. 
30);  Crew  v.  Pratt,  119  Cal.  139  433  ("until  our  youngest  child  now 
(alienation  prevented  for  seven  living  shall  have  arrived  at  the 
years )  ;  Farrand  v.  Pettit,  84  Mich.  age  of  twenty-one  years  or  would 
671;  Fargo  v.  Squiers,  154  N.  Y.  arrive  at  that  age  if  living"). 
250  (alienation  prevented  as  to  si  Edgerly  v.  Barker,  66  N.  H. 
one-half     the     property     till     child  434;  28  L.  R.  A.  328. 


741 

LAW    OV     WILLS.  '^-^ 


is  forbidden  by  the  riile.^^  And  wliere  such  a  restraint  is 
made,  a  provision  allowing  a  sale  if  the  supreme  court  shall 
consent,  docs  not  make  the  bequest  valid,  since  the  supreme 
court  may  not  consent.^' 

A  bequest  of  stock  was  made  in  a  national  bank  in  a  non- 
charitable  trust  to  last  during  the  corporate  existence  of  the 
bank  ^'either  undev  its  present  character  or  by  virtue  of  any 
renewals  or  extension  thereof."  At  the  time  of  testator's  death 
the  charter  of  the  bank  was  limited  to  expire  in  less  than  the 
period  of  tvventv  years,  which  the  New  Jersey  statute  allowed 
for  the  restraint  of  alienation,  and  no  statute  allowed  a  re- 
newal. It  was  held  that  inasmuch  as  the  will  expressly  pro- 
vided for  renewals  of  the  charter,  which  were  within  the 
power  of  the  government,  the  bequest  might  extend  beyond  the 
time  limited,  and  was  therefore  void.«^  The  view  of  the  court 
in  this  case  was  possibly  affected  by  the  fact  that  after  the  death 
of  testator  a  statute  was  passed  providing  for  an  extension  ol 
the  bank's  charter,  which  was  acted  upon  by  the  bank. 

And  a  devise  of  the  use  of  the  homestead  to  the  widow  for 
life,  charging  the  taxes,  repairs  and  annuity  for  the  widow 
for 'her  life  upon  the  residue  of  the  estate,  restrains  aliena- 
tion for  the  widow's  life;  hence  a  limitation  over  for  two  ad- 
ditional lives  is  void  as  creating  a  perpetuity.^^ 

A  devise  to  the  state  after  the  death  of  testator's  wife  if  the 
state  shall  formally  accept  it  within  five  years  after  ^  such 
death,  for  a  public,  educational  or  charitable  use,  and  if  the 

62  Whitney    v.    Dodge,     105    Cal.  death    of    the    widow);     Greenland 

192    (for  life  of  devise  and  on  her  v.  Waddell,   116  N.  Y.  234    (a  gift 

death  till  her  youngest  child  reaches  to  a  woman  for  life  if  she  does  not 

majority)  ;   McCan's  Succession,   48  survive  her   husband,   remainder   to 

La   Ann.  145;Trufantv.  Nunneley..  her    children    if    they    survive    her 

106    Mich.    554     (specific    tracts    to  and   reach   the   age   of   twenty-one; 

each  of  three  children  for  life;   re-  otherwise  to  others), 

mainder   to   the  bodily  heirs   of   all  63  Fowler  v.  Ingersoll,   127  N.  Y. 

such      children     share     and     share  472.                                     ^.  xr    t    Vn 

alike);    Underwood    v.    Curtis,    127  ^64  Siedler  v.   Syms,  56  N.  J.   Eq. 

N     Y     52.3    (a    devise   to    a   widow  275.                                              ^    ,^.  , 

L   her   life,   and   remainder   to   be  -Dean    v.    Mumford,    102    Mich, 

sold    within    ten    years    after    the  510. 


742  LAW     OF     WILLS. 

state  will  not  accept,  then  to  a  grandson,  is  void  as  suspending 
the  power  of  conveying  an  absolute  fee  for  more  than  two 
lives  in  being,  as  the  state  has  no  title  to  the  realty  devised 
until  the  state  accepts,  and  the  grandson  has  no  title  till  the 
expiration  of  fi-s'e  years  after  the  death  of  testator's  wife.^^ 

§637.     Cases  not  within  the  statutory  rule. 

Under  the  statutory  rule  a  devise  or  bequest  is  valid  where 
a  trust  is  created  to  last  for  only  two  lives  in  being, '^^  Thus, 
a  devise  in  trust  to  executors,  to  pay  the  income  to  testator's 
widow  and  son  for  their  lives,  and  then  in  trust  for  a  char- 
ity, with  a  provision  that  certain  pieces  of  realty  should  "not 
be  sold  or  incumbered,"  was  held  valid,  the  clause  in  restraint 
of  alienation  not  being  construed  to  apply  to  any  but  the 
first  trust  which  was  only  for  two  lives  in  being.^^ 

A  devise  to  a  person  named,  ^to  be  distributed  by  her  among 
her  descendants,  children  and  grandchildren,  according  to  her 
discretion,"  is  valid,  for  under  such  a  devise,  distribution  must 
take  place  at  the  death  of  the  beneficiary  at  the  latest. *^^ 

A  will  devising  the  income  of  a  fund  to  a  daughter  and  two 
cousins  of  testator  is  valid,  where  there  is  a  provision  that 
if  the  cousins  die  before  the  daughter  the  daughter  shall  take 
absolutely;  and  if  the  daughter  dies  first,  the  income  shall  go 
to  such  as  she  shall  name.  In  no  event  can  the  trust  outlasi 
the  lives  of  the  two  cousins.'^ *^ 

So  where  a  will  att-empted  to  settle  life  interests  upon  three 
persons,  but  one  of  them  died  before  testator,  such  devise  did 
not  violate  the  statutory  rule,  as  the  condition  of  facts  at  tes- 
tator's death  determines  the  validity  of  the  will."^^  And  where 
a  devise  is  made  to  two,  jointly,  the  two  may  be  counted  as  one 
tenant  in  estimating  the  number  of  lives,  and  a  remainder  over 

66  state    V.     Holmes,     115    Mich.  20  L.  R.  A.  509;  Beurhaus  v.  Cole, 

456.  94  Wis.  617. 

67Goldtree  v.  Thompson,   79  Cal.  es  Beurhaus  v.  Cole,  94  Wis.  617. 

613;    Meek   v.   Briggs,   87    lo.   610;  69  Woodbridge    v.    Winslow,     170 

Cochrane  v.  Schell,  140  N.  Y.  516;  Mass.   388. 

Corse  V.   Chapman,   153  N.  Y.  466;  to  Bird  v.  Pickford,  141  N.  Y.  18. 

McClelland     v.     McClelland      (Tex.  ti  Mullreed    v.    Clark,    110    Mich. 

Civ.  App.  1898).  37  S.  W.  .3.50.  232. 
Saxton    V.    ^Vebber,    83    Wis.    617; 


743 

LAW     OF     WILLS. 


and  a  provision  for  a  sale  on  tlie  death  of  the  remainderman, 
and  distribntion  of  the  proceeds  among  the  legatees  is  valid.  - 
Where  the  will  creates  two  or  more  trusts,  none  of  which 
will  last  more  than  two  lives  in  being,  each  of  such  trusts  is 
valid,  although  by  such  a  will  the  entire  property  of  testator 
is  not  set  free  until  after  more  than  two  lives  m  being.        And 
a  devise  in  trust  for  a  fixed  number  of  years  may  be  made 
valid  by  a  further  provision  that  if  a  life,  or  two  lives,  m  being 
should  terminate  before  the  time  limited  that  the  estate  should 
be  vested  in  certain  named  persons.^^     And  where  upon  a  cor- 
rect construction  of  the  will  certain  bequests  vest  absolutely 
within  the  time  limited,  they  are  valid,  even  though  trusts  as 
to  the  residue  of  testator's  estate  are  prolonged."^^ 

A  direction  to  receive  certain  rents  until  the  leases  are  can- 
celled and  pom3r  to  sell  when  the  leases  are  cancelled,  does  not 
forbid  sale  before  the  leases  are  cancelled,  and  is  therefore  not 
a  statutory  perpetuity.^«  And  direction  to  executors  to 
sell  certain  realtv  during  the  spring  months  of  a  certain  year, 
a  few  months  after  testator's  death,  is  not  a  perpetuity,  as 
.  it  only  gives  a  reasonable  time  for  sale  and  does  not  prevent 
an  earlier  sale.'^'^ 

§638,     Accumulations. 

After  the  adoption  of  the  rule  against  perpetuities  the  at- 
tention of  the  courts  was  not  especially  directed  for  a  con- 
siderable time  to  the  dangers  that  lay  in  permitting  accumu- 
lations; that  is,  devises  and  bequests  in  trust,  the  net  income 
not  to  be  expended  but  to  be  added  to  the  principal,  and  the 
entire  sum  thus  obtained  to  be  used  at  the  end  of  the  ac- 
cumulation period  as  provided  by  will.     It  thus  became  es- 

T2  Hughes    V.    Hughes.     91     Wis.  ^5  Sawyer    v.    Cubby,    146    K    Y. 

*  192;  Durfee  v.  Pomeroy,  154  :N.  \. 
loo. 

73  Allen  V.  Allen,  149  N.  Y.  280.  583.                                       .„  ^  ,    ,,n 

T,     V.              .    TH+lP    T^4  N    Y    147-  TGToland  v.  Taland,  123  Cal.  140. 

Buchanan  v.  Little,  154  rs.   i.   J.'**  ,  144    xr     v 

Schermerhorn    v.    Cotting.     131     N.  "  Deegan    v.    ^ade,     144    N^    Y. 

Y.  48;  Surdam.v.  Cornell,  116  N.  Y.  573;    Atwater  v.  Russell,  49  Mmn. 


305. 

74  Montignani  v.  Blade,  145  N.  Y. 

111. 


22.     See  Sec.  629. 


744  LAW     OF     WILLS. 

tablished  law  without  much  discussion  that  accumulations 
might  be  permitted  for  as  long  a  time  as  the  rule  against  per- 
petuities would  permit  any  estate  to  be  held  on  a  con- 
tingency J^ 

The  "will  of  Mr.  Thelluson  called  the  attention  of  the  courts 
and  the  public  to  the  abuses  possible  under  this  rule.  This 
remarkable  document  settled  an  estate  worth  about  three  mil- 
lion dollars  upon  certain  trustees  to  invest  and  accumulate 
the  income  till  the  death  of  the  last  survivor  of  a  number  se- 
lected, in  being  at  testator's  death,  and  then  to  divide  the  ac- 
cumulated funds  among  testator's  descendants  in  designated 
proportions,  and  failing  them,  to  the  crown  of  England  for  the 
sinking  fund.  This  devise  was  perfectly  valid  as  the  law  then 
stood  and  was  accordingly  upheld.'^^ 

The  comment  caused  by  the  case  arose  from  the  fact  that 
it  was  discovered  by  careful  computation  that  the  trust  would 
probably  last  for  about  seventy-five  years,  and  the  total  ac- 
cumulation would  be  upwards  of  one  hundred  and  twenty-five 
million  dollars. 

This  state  of  the  law  was  at  once  remedied  by  the  act  of 
39  and  40  Geo.  Ill,  ch.  98,  which  is  popularly  known  as  the 
"Thelluson  Act."  As  far  as  this  statute  and  the  American 
statutes,  which  are  based  upon  it,  affect  wills,  they  limit  accum- 
ulation periods  to  tw^enty-one  years  after  the  death  of  testa- 
tor, or  during  a  period  of  minority  where  such  period  exists 
at  the  death  of  testator. 

Accumulations  can  not  be  made  for  any  longer  period  than 
that  provided  for  by  the  act.^*'  But  where  a  bequest  to  a 
named  beneficiary  is  to  accumulate  for  his  benefit  beyond 
the  time  limited,  such  bequest  is  not  void  except  as  to  the  pro- 

78  Scarisbrick  v.  Skelmersdale,  17  439  (accumulation  directed  for  six- 
Sim.  187;  Green  v.  Ekins,  2  Atk.  ty  years);  Cochrane  v.  Schell,  140 
473;  Harrison  v.  Rowley,  4  Ves.  N.  Y.  516  (accumulation  to  go  to 
212;  Boughton  v.  Boughton,  1  H.  persons  not  in  being  at  death  of 
L.   Cas.   406.  testator)  ;  Farnum's  Estate,  191  Pa. 

TO  Thelluson  v.  Woodford,   4  Ves.  St.    75;    Edward's    Estate,    190    Pa. 

227.  St.   177    (accumulation   for   life). 

80  Baker  v.   Stuart,  28   Ont.  Rep. 


LAW     OF    WILLS.  745 

vision  for  alienation,   and  the   beneficiary    can    take    imme- 
diately.*^ 

A  direction  for  accumulation  which  is  evidently  not  in- 
tended to  extend  beyond  the  time  fixed  by  law  is  not  invali- 
dated by  a  provision  that  trustees  shall  delay  the  erection  of 
a  certain  building  until  the  city  decides  in  regard  to  a  pro- 
posed change  of  grade  affecting  the  property  upon  which  the 
building  is  to  be  erected.^^ 

§639.     Charitable  Devises. — Definition. 

A  charitable  devise  is  one  for  the  benefit  of  an  indefinite 
class  of  persons  which  may  include  the  whole  public,  which 
devise  is  intended  to  promote  the  well-being  of  such  class, 
within  the  limits  allowed  by  the  law.^^  Other  definitions  to 
the  same  effect  in  substance  are  given.*"* 

Where  the  statute  or  the  constitution  permits  relaxation  of 
the  ordinary  rules  in  favor  of  "eleemosynary"  devises,  this 
is  held  equivalent  to  the  common  law  meaning  of  "charit- 
able,"  as   here   discussed.*^ 

The  size  and  scope  of  this  book  do  not  permit  of  a  thorough 
and  detailed  investigation  of  the  great  subject  of  charitable 
trusts,  yet  a  discusion  of  the  nature  and  extent  of  a  testamen- 
tary power  would  be  incomplete  without  some  reference  to  a 
subject  which  is  of  such  importance  by  reason  of  its  frequent 
recurrence  in  the  law  of  wills.  All  that  can  be  undertaken  here 
is  a  brief  resume  of  the  main  principles  of  the  subject  as  il- 
lustrated by  a  few  of  the  adjudicated  cases,  chiefly  those  re- 
cently decided. 

81  Wharton  v.  Masterman  ( 1895)  ;  Tilden  v.  Green,  130  N.  Y.  46  ;  Towle 

A.   C.    186;    64   L.   J.   Ch.    (N.   S.),  v.  Nessniith,  —  N.  H.  — ;   42  Atl. 

369.  900. 

82Eoger's     Estate,     179     Pa.     St.  s*  Jackson    v.    Phillips,    14    Allen 
602.                                                                  .      (Mass.),    539;     Pennoyer    v.    Wad- 

83Willey's    Estate,    —    Cal.    — ;  hams,  20  Ore.  274 ;  Vidal  v.  Girard, 

50    Pae.    550;    Mack's    Appeal,    —  2  How.   (N.  S.),  127. 

Conn.  — ;    41   Atl.  242;    Old  South  ss  People,  Ellert  v.  Cogswell,   113 

Society    v.    Crocker,    119    Mass.    1;  Cal.    129. 


746  LAW     OF     WILLS. 

§640.     Rule  against  perpetuities  as  applied  to  gifts  to  charitable 
uses. — Time  of  vesting. 

Charitable  devises  must  be  considered  by  themselves  be- 
cause of  certain  peculiarities  which  they  possess.  They  are 
generally  said  not  to  be  within  the  rule  against  perpetuities. 
Since  the  term  "rule  against  perpetuities"  is,  as  we  have  seen, 
ambiguous,  the  cases  in  which  charitable  devises  are  not  with- 
in the  rule  must  be  considered  in  detail. 

Where  a  devise  to  a  charity  is  so  given  as  not  to  vest  with- 
in the  time  fixed  by  the  rule  against  perpetuities,  the  devise 
is  void.  In  this  sense  of  the  term,  a  devise  to  a  charitable 
trust  is  within  the  rule  against  perpetuities.^*^ 

A  devise  to  a  charitable  organization  to  be  incorporated 
after  testator's  death,  is  held  in  some  states  not  to  be  contrary 
to  the  rule  against  perpetuities,  as  the  corporation  is  supposed 
to  be  created  at  once.^'^  In  others  it  is  held  invalid  as  con- 
trary to  the  rule  against  perpetuities,  since  the  corporation 
may  not  be  formed  for  a  considerable  time  after  testator's 
death,  and  the  delay  is  not  limited  to  a  life  in  being.*^  Even 
where  the  will  provided  that  the  act  of  incorporation,  the  de- 
tails of  which  differ  from  the  general  statute,  is  to  be  ob- 
tained during  the  lifetime  of  the  executors,  or  one  of  them, 
such  gift  was  held  too  remote.^''  But  where  the  devise  is  to 
a  religious  society,  at  the  death  of  the  wife  of  testator,  to  be 

86 /n  re  Gyde  (Ch.),  78  Law.  T.  Comstock,  51  Conn.  352;  First  So- 
Rep.   449;    Chamberlayne  v.   Brock-       ciety       of       M.       E,       Church       v. 


ett,  L.  R.  8  Ch.  206;  Jocelyn  v 
Nott,  44  Conn.  55;  Parker  v 
Churchill,  104  Ga.  122;  30  S.  E 
642;  Crerar  v.  Williams,  145  111 
625,  affirming,  44  111.  App.  487 
Brooks  V.  Belfast,  90  Me.  318 
State  V.  Holmes,  115  Mich.  456; 
John's  V7ill,  30  Ore.  494;  47  Pac 
341;   36  L.  R.  A.  242. 

87  Vidal  V.  Philadelphia,  2  How 
127;  Hayes  v.  Pratt,  147  U.  S 
557;  Jones  v.  Habersham,  107  U 
S.    174;    Quid    v.    Hospital.    95    U 


Clark,  41  Mich.  730;  Chase  v. 
Stockett,  72  Md.  235  (the  trustees 
to  become  incorporated  if  they 
wished)  ;  Lane  v.  Eeaton,  69  Minn. 
141;  71  N.  W.  1031;  38  L.  R.  A. 
669;  Keith  v.  Scales,  124  N.  Car. 
497;  Pepper's  Estate,  154  Pa.  St. 
331 ;  Emory  College  v.  Shoemaker 
College,  92  Va.  320. 

88  Bond  V.  Home  for  Aged  Wo- 
men, 94  la.  458;  62  N.  W.  838; 
Booth  V.  Church,  126  N.  Y.  215; 
Leonard  v.  Burr,  18  N.  Y.  96. 


S.   303 ;    Field  v.   Drew  Theological  89  People  v.  Simonson,  126  N.  Y. 

Seminary,    41    Fed.    371;     Coit    v.       299. 


LAW     OF     WILLS.  *^" 

used  as  a  parsonage  only,  to  revert  to  testator's  heirs  if  such 
use  shall  cease,  and  such  society  incorporates  during  the  con- 
tinuance of  the  life  estate,  it  may  take.^*^ 

But  where  the  devise  is  to  a  charity,  and  upon  a  given  event 
over  to  another  charity,  the  gift  is  generally  upheld,  even 
though  the  event  is  so  remote"  that  it  may  not  occur  during  the 
time  limit  fixed  hy  the  rule.  The  reason  of  this  exception  is 
generally  said  to  be  that  since  restraints   on   alienation   are 

tolerated  in  charitable  bequests,  and  since  the  estate  has 
vested  in  the  first  charity  within  the  time  limited  by  the  rule, 
the  policy  of  the  law  is  no  more  violated  by  a  change  of  use 
from  charity  to  charity,  than  by  a  continuance  of  the  use  in 
the  first  charity.^^ 

A  devise  to  a  charity  after  a  life  estate  is,  of  course,  not 

contrary  to  the  rule  against  perpetuities.^^ 

§641.     Rule  against  perpetuities  as  applied  to  gifts  to  charitable 
uses, — Restraint  on  alienation. 

A  charitable  devise  is,  in  another  sense,  an  exception  to  the 
rule  against  perpetuities.  If  the  devise  is  such  that  it  is  rec- 
ognized by  the  law  as  charitable,  it  may  restrain  the  aliena- 
tion of  property  beyond  the  time  fixed  by  such  rule,  and  hold 
the  property  for  such  charitable  use.»»      But   such   restraint 

soLougheed    v.    Dykeman's    Bap-  93  Russell  v.  Allen,  107  U.  S.  163  ; 

tist  Church,   129  N.  Y.  2U;    14  L.  Ould    v.    Washington    Hospital,    95 

j^    A.  410.  '  U.  S.  303;   Field  v.  Drew  Theologi- 

^lin  re' Tyler    (C.   A.),    (1891),  cal    Sera.    41    Fed.    371;    Spence    v. 

3    Ch.    252;     Ould    v-    Washington  Widney     (Cal.),     (1896),    46    Pac. 

Hospital,  95  U.   S.   ?03;   Russell  v.  463;   W^oodruff  v.   Marsh,   63   Conn. 

Allen    107  U.  8.  163;  Jones  v.  Hab-  125;  26  Atl.  846;  Pendleton  v.  Kin- 

ersham,   107   U.   S.   174;    Church  v.  ney,     65     Conn.     222;      Parker    v. 

Trustees,    67    Conn.    554     (to    vest  Churchill,    104    Ga.    122;    Alden    v. 

when   first  beneficiary   should  cease  St.  Peter's  Parish,  158  111.  631 ;  In- 
to  be   in   communion  with   a   given    .  graham  v.  Ingraham,   169   111.  432; 

denomination);    Odell    v.    Odell,    10  169    HI.   472;    Crerar    v.    Williams, 

Allen    uviass.),   1;  John's  Will,   30  145   HI.   625;    34   N.   E.   467;    Rush 

Ore.  494;  47  Pac.'341;   36  L.  R.  A.  County  v.  Dinwiddle,  139  Ind.  128; 

242]          '  Brooks  V.  Belfast,  90  Me.  318 ;  In  re 

92Mack's  Appeal,  71   Conn.   122  ;p  Bartlett,    163  Mass,   509;    40  N.   E. 

41    Atl.   242;    Pendleton   v.   Kinney,  899;   Teele  v.  Bishop  of  Derry,   168 

65  Conn.  222.  Mass.  341;  47  N.  E.  422;  Wardens, 


748  LAW    OF    WILLS. 

is  to  be  construed  in  accordance  with  the  general  purpose  of 
the  will/'*^  Thus,  where  a  will  devised  lands  for  a  homo 
for  disabled  clergymen,  and  provided  that  no  part  of  the  land 
should  be  sold  or  devoted  to  other  purposes,  is  not  held  to 
forbid  the  sale  of  isolated  parcels  which  could  not  be  used 
with  the  bulk  of  the  estate.^" 

§642.    Accumulations  for  charitable  purposes. 

In  the  third  sense  of  the  word  charitable  devises  are  ex- 
ceptions to  the  rule  against  perpetuities.  Property  may  be 
granted  to  accumulate  for  a  period  beyond  the  time  fixed  for 
ordinary  accumulations,  and  if  the  fund  is  to  be  devoted  to 
charity,  and  if  it  vests  within  the  time  limited,  the  devise 
will  be  upheld.^®  Thus,  a  devise  in  which  ten  thousand  dol- 
lars of  the  income  was  to  be  added  annually  to  the  principal 
for  one  hundred  years,  and  the  residue  of  the  income  was  to 
be  devoted  to  educational  purposes  was  held  valid.^'^  But 
accumulations  may  be  for  too  long  a  period  to  be  permitted 
by  the  local  statute  even  for  charitable  uses.^* 

§643.     Who  may  be  beneficiaries  of  a  charitable  devise. 

Any  class  of  individuals  may  be  beneficiaries  under  a  char- 
itable devise.     Under  the  definition  of  a  charitable  trust^^  it  is 

etc.  V.  Attorney  General,  164  Mass.       berlayne   v.    Brockett,   L.   R.   8    Ch. 


188;  Jackson  v.  Phillips,  14  Allen  206 
(Mass),  539;  Odell  v.  Odell,  10  Al-  244 
len    (Mass.),  1;  Penny  v.  Croul,  76       125 


Duggan  V.  Slocum,  83  Fed. 
Woodruff  V.  Marsh,  63  Conn. 
Tngraham    v.    Ingraham,    169 


Mich.  471;  5  L.  R.  A.  858;  Lane  v.  111.   432;    169    111.   472:    Phillips   v. 

Eaton,   69  Minn.   141;    30  L.   R.  A.  Harrow,   93   lo.    92;    Wardens,   etc. 

669;   Moore  v.  Moore,  25  Atl.  403;  v.  Attorney  General,  164  Mass.  188; 

In  re  John  Mercer  Home,   162  Pa.  In  re  Bartlett,  163  Mass.  509;  Odell 

St.  232;  Mills  v.  Davison,  54  N.  J.  v.    Odell,    10    Allen,    1;    Tainter    v. 

Eq.  659;  Webster  v.  Wiggin,  19  R.  Clark,  5  Allen,  66;  Nelson  v.  Cush- 

I.  73;   Staines  v.  Burton,   17  Utah,  ing,   2   Cush.   519;    American  Acad- 

331.  emy   v.    Harvard    College,    12    Gray 

94  See   Sees.    634-637.  582;    Webster   v.   Wiggin,    19   R.   I. 

95  In    re   John    C.    Mercer   Home,  73. 

162    Pa.    St.    232.  ot  Woodruff   v.    Marsh,    63    Conn. 

96  Harbin   v.    Masterman    (1894),  125 :  26  Atl.  846. 

2  Ch.  184;  Society  v.  Attorney  Gen-  98  ingraham     v.     Ingraham,     169 

eral,  3  Russ.  142 ;  Attorney  General  111.  432,  472. 

v.   Bishop,    1    Bro.   Ch.   444 ;    Cham-  99  See  Sec.   639. 


LAW    OF    WILLS. 


749 


not  necessary  that  the  beneficiary  be  described  with  that  cer- 
tainty that  is  necessary  in  ordinary  devises  and  bequests.  In- 
deed, it  is  said  that  the  uncertainty  of  the  beneficiary  is  an 
essential  characteristic  of  the  charitable  devise.^ °^ 

The  extent  to  which  uncertainty  is  allowed  is  by  no  means 
the  same  in  the  different  jurisdictions.  There  is  the  widest 
divergence,  from  the  utmost  liberality  on  down  to  the  very 
narrowest  constructions  in  determining  the  validity  of  char- 
itable trusts  with  reference  to  the  certainty  of  the  benefi- 
ciaries. Thus  a  devise  to  the  executors  "to  distribute  among 
such  charitable  institutions  as  they  may  see  fit"  is  held  valid 
in  some  states,^*^^  and  is  held  invalid  elsewhere.^^^  Thus  a 
gift  to  the  executors  "for  any  charitable  institution  they  may 
select  or  think  of  benefiting,  to  perpetuate  my  memory,"  was 
held  void,  being  too  specific  for  a  general  charity,  and  too  in- 
definite for  an  ordinary  devise.^  ^^ 

So  where  the  general  outlines  of  the  charity  are  indicated 
and  trustees  selected,  with  discretionary  powers  for  selecting 
the  beneficiaries,  such  a  devise  is  held  in  some  states  as  void 
for  indefiniteness.^^^  But  in  the  greater  number  of  states  a 
more  liberal  rule  is  adopted,  and  where  the  general  purpose  of 

100  Russell  V.  Allen,  107  U.  S.  "boys  and  girls  of  California"); 
163;  Wood  v.  Paine,  66  Fed.  Rep.  Long  v.  Gloyd,  25  Wash.  L. 
807;  Hinckley's  Estate,  58  Cal.  457;  Rep.  50;  Moran  v.  Moran,  104  lo. 
Old  South  vSociety  v.  Crocker,  119  216;  3fl  L.  R.  A.  204  (a  bequest  to 
Mass.  1;  Weber  v.  Bryant,  161  be  divided  among  the  Sisters  of 
Mass.  400;  Sowers  v.  Cyrenius,  39  Charity  without  any  further  de- 
O.  S.  29.  scription  of  the  beneficiaries.     Here 

101  Sickles  v.  New  Orleans,  80  Fed.  no  discretionary  power  was  given 
868;  Powell  v.  Hatch,  100  Mo.  592;  to  the  trustees)  ;  Tingling  v.  Mil- 
Kinike's  Estate,  155  Pa.  St.  101;  ler,  77  Md.  104;  26  Atl.  491;  (a 
Murphy's  Estate,  184  Pa.  St.  310;  devise  to  the  "needy  poor  of  said 
Sawtelle   v.   Witham,   94   Wis.   412.  church,"   the  church  being  unincor- 

102  Burke's  Succession,  51  La.  porated)  ;  Wheelock  v.  American 
Ann.  538;  25  So.  387;  People  v.  Tract  Society,  109  Mich.  141  (a 
Powers,  147  N.  Y.  104;  Fairchild  devise  to  trustees  to  pay  money  to 
V.  Edson,  154  N.  Y.  199 ;  Read  v.  certain  charities  in  such  sums  as 
Williams,  125  N.  Y.  560.  they    deemed    proper,    or     to     such 

103  Burke's  Succession,  51  La.  worthy  poor  girls  as  they  should 
Ann.  538.  select)  ;    Society  v.   Moll,   51   Minn. 

104  People' ca;  re?.  V.  Cogswell.  113  277;  53  N.  W.  648  (a  devise  to 
Cal.  129;  L.  R.  A.   (in  trust  for  the      "those   members   of   the   'Society   of 


750 


LAW    OF    WILLS. 


the  charity  is  indicated  discretionary  powers  in  the  trustees 
for  the  selection  of  the  beneficiaries  do  not  vitiate  the  tiiist.^°^ 


the  Most  Precious  Blood'  who  are 
under    my    control    and    subject    to 
my  authority  at  my  death")  ;  Fair- 
child   V.   Edson,    154   N.   Y.    199    (a 
bequest   to   trustees   to  be   by   them 
divided    among    such    "incorporated 
religious,  benevolent  and  charitable 
societies  of  the  City  of  New  York" 
as    they    should    select)  ;    People   v. 
Powers,   147   N.  Y.   104    (a  like  de- 
vise   in    the    City    of    Rochester)  ; 
Fosdick    V.    Hempstead,    125    N.    Y. 
581;  11  L.  R.  A.  715;  Alberyv.  Ses- 
sions,   2    Ohio   N.   P.   237;    3    Ohio 
Dec.   330;    Brennan  v.   Winkler,   37 
S.  Car.  457;  16  S.  E.  190  (a  devise 
"to    educate    young    men    for    the 
priesthood  or  to  educate  individual 
boys   and   girls" )  ;    Jones   v.   Green, 
Tenn.  Ch.  App.  36   S.  W.   729;   Fi- 
field  V.  Van  Wyck,  94  Va.   557    (a 
bequest   to   trustees   "for   the   bene- 
fit of  the  New  Jerusalem  Church  as 
they    shall    deem    best")  ;    Pack    v. 
Shanklin,  43  W.  Va.  304;   27   S.  E. 
389    (a    devise   to    the   "trustees   of 
each  of  these  causes,  home  missions, 
foreign    missions,     American     Bible 
Society   of   the    Southern   Presbyte- 
rian Church,"  where  there  were  no 
such    trustees.      This    could    not   be 
treated  as  a  devise  to  the  trustees 
of  the  general  assembly  of  the  Pres- 
byterian   Church     in     the     United 
States)  ;     McHugh    v.    McCole,    97 
Wis.  166;  40  L.  R.  A.  724;  72  N.  W. 
631    (a  bequest  to  a  bishop  "to  be 
used  by  him  for  the  benefit  and  be- 
hoof of  th6  Roman  Catholic  Church 
at   X,"   where   the   church   was   not 
incorporated  and  consisted  of  sever- 
al   associations    and    organizations; 
and  also   a   bequest   to  him   "to  be 
used  for  the  benefit  and  behoof  of 
the     Roman     Catholic     Church")  ; 
Fuller's  Will,  75  Wis.  431    (to  pay 


income  to  the  American  Baptist 
Publication  Society  of  Philadelphia 
to  support  a  Baptist  colporteur 
and  missionary  in  Wisconsin). 

105  Phelps  V.  Lord,  25  Ont.  Rep. 
259  (for  "the  cause  of  our  Lord")  ; 
In  re  Darling  (1896),  1  Ch.  50  (to 
"the  poor  and  the  service  of  God")  ; 
Wood  V.  Paine,  66  Fed.  807;  Dug- 
gan  V.  Slocum,  83  Fed.  244  (a  be- 
quest to  trustees  to  establish  a  pub- 
lic library  and  a  protectory  for 
boys,  no  means  for  selecting  the 
beneficiaries  being  indicated)  ;  John 
V.  Smith,  91  Fed.  827;  Strong's  Ap- 
peal, 68  Conn.  527  (a  bequest  to 
"the  worthy  poor  of  said  town  .  .  . 
as  may  be  in  needy  and  necessitous 
circumstances  .  .  .  always  exclud- 
ing .  .  .  the  criminal  classes")  ; 
Mack's  Appeal,  71  Conn.  122;  41 
Atl.  242 ;  Grand  Prairie  Seminary  v. 
Morgan,  171  111.  444,  affirming  70 
111.  App.  575;  Phillips  v.  Harrow, 
93  lo.  92;  61  N.  W.  434;  Bedford 
V.  Bedford,  99  Ky.,  273;  35  S.  W. 
926:  Tichenor  v.  Brewer,  98  Ky. 
349 ;  33  S.  W.  86  (devise  to  a  bishop 
"to  be  by  him  used  for  the  Roman 
Catholic  charitable  institutions  in 
his  diocese")  ;  Fox  v.  Gibbs,  86  Me. 
87  (devise  to  trustees  to  use  at 
their  discretion  for  "benevolent  and 
charitable  purposes")  ;  Darcy  v 
Kelly,  153  Mass.  433;  Towle  v.  Nes 
smith,  —  N.  H.  — ;  42  Atl.  900 
Bird  v.  Merklee,  144  N.  Y.  544 
O'Neal  V.  Caufleld,  5  Ohio  N.  P 
149;  Pennoyer  v.  Wadhams,  20 
Ore.  274:  11  L.  R.  A.  210 
Trim's  Estate,  168  Pa.  St.  395: 
Dye  V.  Beaver  Creek  Church,  48 
S.  Car.  444  (a  devise  to  trus- 
tees "for  poor  children  for  their 
tuition")  ;  Staines  v.  Burton,  17 
Utah,  331:   53  Pac.   1015    (a  devise 


LAW    OF    WILLS. 


751 


A  comparison  of  these  sets  of  cases  will  show  that  in  some 
states  a  devise  of  realty  may  be  upheld  as  definite  if  made  to 
trustees  where  a  similar  devise  would  be  held  as  too  indefinite 
if  made  directly    to    the    class    without    the    intervention    of 

trustees.^  "^ 

In  many  states  a  devise,  either  directly  or  in  trust,  for  an 
''unincorporated  voluntary  association  whose  membership  is 
fluctuating  and  uncertain,"  is  void  for  uncertainty,  whether  a 
trustee  is  interposed  or  not.^^'^ 

In  Tennessee  a  devise  or  bequest  to  the  persons  who  are  in 
fact  trustees  of  a  voluntary  unincorporated  society,  where  the 
will  takes  effect  is  valid ;  while  a  similar  gift  to  such  trustees 
as  the  society  may  select  is  invalid.i*^^  j^  some  states  a  dis- 
tinction is  made  between  bequests  of  personalty  to  a  voluntary 
unincorporated  association,  and  devises  of  realty  the  former 
being  upheld  when  the  latter  would  not  be.^^^ 

Legislation  also  has  been  busy  upon  this  subject  and  many 
apparent  conflicts  in  judicial  decision  are  due  solely  to  pecu- 


to  a  bishop  of  the  Mormon  Church 
to  spend  the  income  in  his  discretion 
for  the  benefit  of  church  members, 
where  almost  all  the  inhabitants  of 
the  community  were  members  of 
that  church)  ;  Sheldon  v.  Stock- 
bridge,  67  Vt.  299;  31  Atl.  414  (a 
devise  to  the  town  of  Stockbridge 
for  the  relief  of  the  poor  -of  said 
town )  ;  Protestant  Episcopal  Educa- 
tion Society  v.  Churchman,  80  Va. 
718  (  a  devise  "to  be  used  exclusive- 
ly for  educating  poor  young  men  for 
the  Episcopal  ministry"). 

106  Thus  compare  Brennan  v. 
Winkler,  37  S.  Car.  457  and  Dye 
v.  Church,  48  S.  Car.  444;  Stone 
V.  Griffin,  3  Vt.  400 ;  Conklin  v.  Da- 
vis, 03  Conn.  377;  Alden  v.  St.  Pe- 
ter's Parish,  158  111.  631 ;  Cruse  v. 
Axtell,  50  Ind.  49;  Tappan  v. 
Deblois,  45  Me.  130;  Halsey  v.  Prot- 
estant Episcopal  Convention,  75  Md. 
275;  Jackson  v.  Phillips,  14  All. 
539. 


107  Philadelphia  Baptist  Associa- 
tion v.  Hart,  4  Wheat.  1 ;  Brewster 
v.  McCall,  15  Conn.  274;  First  So- 
ciety of  M.  E.  Church  v.  Clark,  41 
Mich.  730;  Lane  v.  Eatom,  69  Minn. 
141 ;  38  L.  R.  A.  669 ;  White  v. 
Howard,  46  N.  Y.  144 ;  Downing  v. 
Marshall,  23  N.  Y.  366;  80  Am. 
Dec.  290 ;  Holland  v.  Alcock,  108  N. 
Y.  312;  Fairchild  v.  Edson,  154  N. 
Y.  199;  Rhodes  v.  Rhodes,  88  Tenn. 
637;  Wilmoth  v.  Wilmoth,  34  W. 
Va.  426. 

108  Sheets  v.  Hardin  (Tenn.),  48 
S.  W.  207  ;  Daniel  v.  Fain,  5  Lea. 
319;   Reeves  v.  Reeves,  5  Lea.   644. 

109  Wellbeloveu  v.  Jones,  1  Sim. 
&  Stu.  40;  Johnstone  v.  Harrowby, 
1  De  G.  F.  &  J.  183;  Williams  v. 
Pearson,  38  Ala.  299;  Hadden  v. 
Dandy,  51  N.  J.  Eq.  154;  32  L.  R. 
A.  625;  Evangelical  Association's 
Appeal,  35  Pa.  St.  316;  Witman  v. 
Lex.  17  Serg.  &  R.  88 ;  17  Am.  Dec. 
644. 


752  LAW    OF    WILLS. 

liarities  of  statute  law.  Thus,  after  the  magnificent  devise 
of  Samuel  J.  Tilden  was  held  void  for  uncertainty/^"  the 
legislature  altered  the  rule  to  prevent  a  recurrence  of  such  a 
failure,  and  now  allows  much  greater  liberality  in  indefinite 
beneficiaries.^  ^^ 

§644.     Charitable  devises  to  public  corporations. 

A  public  corporation  may  ordinarily  be  the  beneficiary  of 
a  charitable  devise;  or  may  take  as  trustee  for  the  benefit  of 
its  members  or  of  certain  specified  classes  of  them.  The  state 
may  be  the  beneficiary  of  a  charitable  devise,^^^  but  the  state 
treasurer  can  not  accept  the  devise  for  the  state.  The  state 
legislature  alone  has  this  power.^^^ 

A  devise  may  be  made  to  a  town,  city  or  other  municipal 
corporation  as  trustee  for  charitable  purposes,^ ^'^  or  to  a  hoard, 
of  county  conmiissioners,^^^  or  to  a  board  of  water  commis- 
sioners,^ ^^  and  if  the  town  should  be  imwilling  to  accept,^  ^'^  or 
be  not  authorized  by  its  charter  to  accept,^ ^^  equity  will  ap- 
point a  new  trustee  and  the  devise  will  not  fail. 

The  fact  that  the  city  could  not  have  levied  a  tax  for  the  char- 
itable purpose  specified  in  the  will  does  not  prevent  the  devise 

110  Tilden  v.  Green,  130  N.  Y.  v.  Cole,  94  Wis.  617;  69  N.  W. 
29.  986. 

111  Dammert  v.  Osborn,  140  N.  Contra,  as  to  a  city  •  Daily  v.  New 
Y.  30.  Haven,  60  Conn.   314;    14  L.  R.  A. 

112  Jn     re     Yale     University,  67       69. 

Conn.  237 ;  State  v.  Blake,  69  Conn.  us  Rush  County  Commissioners  v. 

64;    Bedford   v.     Bedford,     99     Ky.  Dinwiddie,   139   Ind.   128    (the  stat- 

273.  ute  authorized  the  board  to  appro- 

113  State   v.   Blake,   69   Conn.   64.  priate    money    to    aid    in    establish- 

114  Wood  v.  Paine,  66  Fed.  807;  ing  an  Old  Woman's  Home  when  a 
Phillips  v.  Harrow,  93  To.  92  ;  Sears  certain  amount  had  been  given  or 
V.  Chapman,  158  Mass.  400;  Higgin-  devised   for   such  home). 

son   V.    Turner,    171   Mass.   586;    51  us  Penny  v.  Croul,  76  Mich.  471; 

N.    E.    172;    Barkley    v.    Donnelly,  5  L.  R.  A.  8.58. 

112  Mo.  561;   Mcintosh  v.  Charles-  ii7  Phillips  v.  Harrow,  93  lo.  92. 

town,  45  S.  Car.  584;  Sheldon  v.  us  Wood  v.  Paine,  66  Fed.  807. 
Stockbridge,  67  Vt.  299;    Beurhaus 


LAW    OF    WILLS. 


753 


from  vesting,^  ^^  and  the  fact  that  the  district  to  which  the 
devise  is  made  for  school  purj)oses  is  not  incorporated  does 
not  avoid  the  gift.^"*^ 
,  A  devise  in  tiiist  for  "charitable  and  benevolent  institu- 
tions" is  a  devise  to  those  institutions  with  the  named  district 
which  are  both  charitable  and  benevolent.^  ^^  A  church  con- 
vention which  has  power  by  statute  to  take  property  by  de- 
vise may  act  as  trustee  in  a  charitable  trust.^^^ 

§645.     What  are  charitable  purposes. — Education. 

Upon  the  details  of  what  constitute  charitable  purposes,  the 
courts  are  not  entirely  in  accord,  although  there  is  less  marked 
divergence  upon  this  topic  than  upon  some  others  under  the 
title  of  Charitable  Trusts. 

•  Education  is .  held  to  be  a  charitable  use,  where  the  recipi- 
ents of  the  gift  are  so  indefinite  as  to  render  the  grant  char- 
itable.^ ^^  Thus,  a  devise  to  a  state  to  establish  a  permanent 
school  fund  is  a  charitable  devise.^-"*  So  a  devise  for  the 
benefit  of  public  schools  generally  is  a  charitable  devise,  even 
though  taxation  provides  such  schools  already.^-^  A  pro- 
vision   prohibiting   religious   or   denominational    teaching    in 


119  Phillips  V.  Harrow,  93  lo. 
92-  (to  aid  the  religious  societies  of 
the  city  to  build  and  maintain  a 
foundling  hospital  and  to  aid  the 
poor  and  needy  of  the  city). 

Contra,  Darley  v.  New  Haven,  60 
Conn.  314;  14  L.  R.  A.  69;  Bullard 
V.  Shirley,  153  Mass.  559;  12  L.  R. 
A.   110 

120  Sears  v.  Chapman.  158  Mass. 
400. 

121  People  V.  Powers,  147  N.  Y. 
104. 

122  Halsey  v.  Coaivention  of  P.  E. 
Church,  75  Md.  275. 

i23Birchard  v.  Scott,  39  Conn. 
63 ;  Doughten  v.  Vandever,  5  Del. 
Ch.  51;  Fox  v.  Gibbs,  86  Me.  87; 
Grand  Prairie  Seminary  v.  Morgan, 
171    111.   444;   John's   Will.   30   Ore. 


494 ;  Attorney  General  v.  Parker, 
126  Mass.  216;  DeCamp  v.  Dobbins, 
29  N.  J.  Eq.  36;  Clement  v.  Hyde, 
50  Vt.  716;  Dodge  v.'  Williams, 
46  Wis.  70;  Alniy  v.  Jones,  17  R. 
I.    265. 

124  Bedford  v.  Bedford,  99  Ky. 
273;  35  S.  W.  926;  Sears  v.  Chap- 
man, 158  Mass.  400;  In  re  Bartlett, 
163  Mass.  509 ;  Attorney  General  v. 
Briggg,  164  Mass.  56l ;  Almy  v. 
Jones,   17  R.  I.  265. 

125  John  V.  Smith,  91  Fed.  827 ; 
Handley  v.  Palmer,  91  Fed.  948; 
Green  v.  Blackwell  (N.  J.  Eq.)  ; 
35  Atl.  375;  John's  Will,  30  Ore. 
494:  47  Pac.  341:  36  L.  R.  A. 
242;  Bedford  v.  Bedford,  99  Ky. 
273;  Davis  v.  Barnstable,  154  Mass. 
224. 


754  LAW    OF    WILLS. 

such  school,  is  valid.^^e  ^-^^  ^  devise  to  an  unincorporated 
state  university  is  a  valid  charitable  devise.^ ^^  So  is  a 
devise  to  establish  a  poMechnic  institute.^^s  g^  ^g  ^  devise  to 
existing  educational  institutions  of  a  private  nature,^  ^^  and  to 
parochial  schools,^  ^°  and  a  devise  to  trustees  for  paying  the 
tuition  of  poor  children.^  ^^  So  are  devises  to  educate  young 
men,  one  at  a  time,  for  the  priesthood.^  ^^ 

So  a  bequest  in  trust  to  offer  prizes  for  essays  upon  med- 
ical subjects,  and  to  pay  for  printing  and  circulating  such 
essays,  is  a  valid  charitable  bequest.^  ^^  So  is  a  devise  to  pro- 
vide prizes  for  works  of  art,  the  fund  ultimately  to  go  to  an 
art  institute„^^^  Also  devises  for  the  education  of  specific 
classes,  such  as  the  deaf,  is  a  charitable  devise.^ ^^  But  a  de- 
vise to  the  public  charities  in  certain  specified  districts  was 
held  not  to  include  a  theological  seminary.^  ^^ 

§646.     Public  libraries. 

Public  libraries  are  recognized  by  the  courts  a  most  val- 
uable means  of  education,  and  devises  for  such  purposes  are 

126  John's   Will,   30   Ore.   494;    36  i3i  Dye  v.   Beaver   Creek   Church, 

L.  R.  A.  242.  48   S.  Car.  444;   to  the  same  effect 

i27RQyer's  Estate,   123  Cal.  614;  is  White  v.  McKeon,  92  Ga.  343. 

56  Pac.  461.  132  O'Neal  v.   Caufield,  5  Ohio  N. 

128  People,  Ellert  v.  Cogswell,  P.  149.  (General  Education)  :  /n  re 
113  Cal.  129.  Rymer    (C.  A.),    (1895),   1   Ch.   19; 

129  Spence  v.  Widney,  —  Cal.  — ;  64  L.  J.  Ch.  (N.  S),  86  (Theologi- 
46  Pac.  463;  Abend  v.  Endowment  cal  Seminary)  ;  Barnard  v.  Adams, 
Fund  Commission,  174  111.  96,  af-  58  Fed.  Rep.  313  (2  at  a  time); 
firming  74  111.  App.  654;  Grand  Field  a'.  Drew  Theol.  Sem.  41  Fed. 
Prairie  Seminary  v.  IN'organ,  171  111.  371. 

444;    Curling   v.    Curling,    8    Dana  i33  Palmer  v.  Union  Bark,   17  R. 

(Ky. ) ,  38  ;    Blackbourn  v.  Tucker,  72  I.   627. 

Miss.  735;  17  So.  737    (though  void  "4  Almy  v.  Jones,   17  R.  I.  265; 

as  to  realty,  yet  valid  as  to  person-  12  L.  R.  A.  414. 

alty)  ;    Taylor   v.   Bryn   Mawr   Col-  135  Farrington  v.  Putnam,  90  Me. 

lege,  34  N.  J.  Eq.  101 ;  Franklin  v.  405 ;    37    Atl.    652 ;    North   Carolina 

Armfield,  2  Sneed    (Tenn.),  305.  School  v.  North  Carolina  Institute, 

130  Hanson    v.    Little    Sisters    of  117  N.  Car.  164. 

the  Poor,  79  Md.  434;   32  L.  R.  A.  i36  Ross   v.   Ross,   25   Can.    S.    C. 

293;    Andrews  v.   Andrews,   110  111.  307. 
223;    Keith   v.    Scales,    124   N.   Car. 
497. 


LAW     OF     WILLS. 


756 


upheld  as  charitable.^  ^7  ^nd  a  library  whose  reading-room 
is  free  to  the  general  public, '  though  only  paying  subscribers 
can  take  out  books,  the  money  thus  obtained  being  used  to 
buy  new  books,  is  held  to  be  a  public  library,  so  that  a  devise 
to  it  is  charitable.^3*  So  is  a  devise  for  a  club  and  reading- 
room  for  the  village,  which  by  terms  of  the  devise  was  to  be 
kept  up  ''for  the  furtherance  of  conservative  principles  and 
religious  and  mental  improvement,  and  to  be  kept  free  from 
intoxicants  and  dancing."  ^^^ 

An  astronomical  observatory  is  i^rima  facie  for  public  bene- 
fit, and  is  therefore  a  charity.^^*^ 

§647.     Aid  of  poor  and  destitute. 

Devises  in  aid  of  the  poor  and  destitute  are  always  upheld 
as  charitable  devises  if  the  other  requisite  elements  of  a  char- 
ity are  present.^^^  The  beneficiaries  may  be  limited  to  the 
poor  of  a  certain  avea,''^  and  in  some  states  the  beneficiaries 


137  Duggan  V.  Slocum,  83  Fed. 
244;  Creerar  v.  Williams,  145  111. 
625,  affirming  44  111.  App.  497  ;  Das- 
comb  V.  Marston,  80  Me.  223 :  Weber 
V.  Bryant,  161  Mass.  400;  In  re 
Bartlett,  163  Mass.  509;  St.  Paul's 
Church  V.  Attorney  General,  164 
Mass.  188;  Manners  v.  Library  Co. 
93  Pa.  St.  165;  Penny  v.  Croul,  76 
Mich.  471;  5  L.  P.  A.  858  (Scien- 
tific Library). 

138  Phillips  V.  Harrow,  93  lo.  92. 

139 /«,  re  Scowcroft   (1898),  2  Ch. 

638. 

140  Spence  v.  Widney,  —  Cal.  — ; 
46  Pac.  463. 

141  Zn  re  Geek,  69  L.  T.  N.  S. 
819;  In  re  Darling  (1896);  1  Ch. 
50  (a  devise  "to  the  poor")  ;  Dug- 
gan V.  Slocumb,  83  Fed.  244;  Wood 
V.  Paine,  66  Fed.  807;  Strong's  Ap- 
peal, 68  Conn.  527  (devises  to  the 
"worthy  poor  of  said  towTi")  ;  Phil- 
lips V.  Harrow,  93  lo.  92  (a  devise 
to  the  "poor  and  needy  people"  of  a 
given   city   "who   are   dependent   on 


their  own  labor  for  a  livelihood")  ; 

Doughten    v.   Vandever,    5    Del.    Ch. 

51;  "Hunt  V.   Fowler,    121    111.   269; 

Dascomb   v.   Marsten,   80   Me.    223; 

McAlister    v.    Burgess,     161    Mass. 

269;    24   L.   R.   A.    158;    Bullard   v. 

Chandler,  149  Mass.  532;  5  L.  R.  A. 

104;  Kelly  v.  Nichols,  18  R.  I.  62; 

19  L,  R.  A.  413;  Tichenor  v.  Brew- 
er, —  Ky.  — ;  33  S.  W.  86 ;  Fox  v. 

Gibbs,  86  Me.  87:   Wardens,  etc.  of 

St.  Paul's  Church  v.  Attorney  Gen- 
eral,   164   Mass.    188;    Chadwick   v. 

Livesey,  56  N.  J.  Eq.  453:  41  Atl. 
1115,  affirming  55  N.  J.  Eq.  204; 
Trim's  Estate,  168  Pa.  St.  395 
(a  devise  "for  the  benefit  of  the 
poor"  of  a  named  township)  ; 
Staines  v.  Burton,  17  Utah,  331 ;  53 
Pac.   1015. 

142  See  some  cases  especially  quot- 
ed in  last  note;  and  Hunt  v.  Fow- 
ler, 121  111.  269:  Fellows  v.  Miner, 
119  Mass.  541 :   Towle  v.  Nessmith, 

N.   H.  — :    42   Atl.   900:    Urmey 

v.    Wooden,    1.0.    S.    160;    Scott   v. 


756  LAW     OF     WILLS. 

may  be  restricted  to  the  poor  of  a  certain  church/'*''^  or  to  tke 
230or  of  a  non-charitable  association.^'*"*  But  in  some  states 
a  devise  to  the  poor  of  an  unincorporated  church  or  association 
is  held  void  as  too  indefinite.^ ^^ 

Such  devises  are  upheld  even  where  taxation  already  provides 
for  the  poor  who  are  to  be  benefited  by  the  charity.-^ '**^  So  a 
devise  to  such  institutions  a  give  shelter  at  night  to  the  poor 
and  homeless     is   a   valid   charitable   devise.^^'^ 

Whether  the  poor  may  be  restricted  to  the  poor  relations  of 
testator,  so  as  to  form  a  permanent  trust  in  their  behalf,  i^ 
a  question  of  considerable  difficulty.  The  English  authori- 
ties, and  some  American,  hold  that  a  devise  in  trust  for  testa- 
tor's poor  relations  is  valid  as  a  charitable  devise  ;^'*^  while  in 
others  it  is  held  not  a  public  charity,  but  is  held  lacking  all 
the  peculiarities  of  a  devise  to  public  charity.-'-^^ 

;^648.     Hospitals  and  asylums. 

Devises  to  establish  free  hospitals  are  held  to  be  charita- 
ble.-^^*^  And  a  hospital,  incorporated  without  capital  stock, 
and  not  for  any  financial  benefit  of  its  members,  is  a  charity 
within  this  sense.^^^      So  devises  to  establish  homes  and  asy- 

Trustees,   39   0.   S.    153;    Trim's  Es-  "s  Yingling   v.   Miller,    77    (Md.) 

tate,    168    Pa.    St.    395;    Sheldon   v.  104;  26  Atl.  491. 

Stockbridge,    67    Vt.    299 ;    Sawtelle  i^e  Strong's     Appeal,     68      Conn. 

V.  Witham,  94  Wis.  412;   69  N.  W.  527. 

72.  i^TCroxall's   Estate,    162   Pa.   St. 

143EOSS  V.  Koss,  25  Can.  S.  C.  579. 
307 ;  Conklin  v.  Davis,  63  Conn.  i*8  Attorney  General  v.  College, 
377;  Penick  v.  Thorn,  90  Ky.  665;  L.  R.  4  Ch.  722;  Gillam  v.  Taylor, 
Bird  V.  Merklee,  144  N.  Y.  544  L.  R.  16  Eq.  581 ;  Gafney  v.  Keni- 
(a  devise  to  certain-named  churches  son,  64  N.  H.  354. 
"according  to  the  number  of  mem-  i-ts  Kent  v.  Dunham,  142  JNIass. 
bers  to  buy  coal  for  the  poor  of  216  (distinguished,  but  not  over- 
said  churches")  ;  O'Neal  v.  Cau-  ruled  in  Darcy  v.  Kelley,  153  Mass. 
field,  5  Ohio  N.  P.  149.  433,   where  a   devise   to  the   use  of 

in  In  re  Buck  (1896), 2  Ch.  727;  testator's    poor   relatives,   and   then 

Willey's  Estate,  —  Cal.  — ;  56  Pac.  for    the   use   of   the   poor   generally 

550    (a  devise  to  the  'Svidows'  and  was   upheld).      See   Sec.   643. 

orphans'  fund"  of  a  non-charitable  iso  Hayden    v.    Connecticut    Hos- 

association)  ;    Guilfoil    v.    Arthur,  pital    for    Insane,    64    Conn.    320; 

158  111.  600;  Heiskell  v.  Chickasaw  Hearns  v.  Waterbury,  66  Conn.  98. 

Lodge,  87  Tenn.  608.  i^i  Hearns  v.   Waterbury   Hospit- 
al, 60  Conn.  98. 


7!^7 

LAW     OF    WILLS. 

lums  for  the  orphan,  the  aged  and  the  infirm  are  charitable.^ ^^ 
So  is  a  devise  for  the  benefit  of  the  disabled  soldiers  and  sea- 
men of  the  United  States,  who  were  engaged  in  the  war  of 

the  rebellion.^ ^^ 

A  gift  of  a  farm  in  trnst  for  a  county  home  for  orphans 
and  the  friendless  is  not  invalid  because  it  provides  for  the 
establishment  of  a  church  therein.^^^ 

§649.     Support  of  religion. 

In  most  jurisdictions  the  maintenance  and  support  of  re- 
ligion is  held  to  be  a  charitable  use,  and  a  devise  for  that 
purpose  is  upheld  if  it  contains  the  elements  of  a  valid  chari- 
table devise.i^^  Thus,  devises  for  the  erection  of  buildings  for 
public  worship,  for  keeping  them  in  repair,  and  the  like,  are 
upheld  as  charitable  devises  ;i^«  or  for  erecting  a  church  build- 
ing and  a  parsonage.^^^  So  are  devises  for  supporting  preach- 
ing and  other  religious  work.^^^  So  are  devises  for  missionary 
purposes,  whether  domestic  or  foreign.^^^  So  is  a  bequest  m 
trust  to  publish  religious  books,  where  the  character  of  such 
books  is  described  with  sufiicient  definiteness.^«*^     So  is  a  de- 

152  Hayes  v.  Pratt,  147  U.  S.  557;  509;   Teele  v.  Bishop  of  Derry    108 

Woodruff  V.  Marsh,   63  Conn.   125;  Mass.   341;    38  L.  R.  A    -;   47  N. 

26    Atl     846;     State    v.    BLake,    69  E.  422;   St.  George's,  etc.  Society  v. 

Conn.  64;   Bond  v.  Home  for  Aged  Branch,   120  Mo.   226 

Women,  94  lo.  458;  62  N.W.  838;  i^t  Pennoyer     v.     Wadhams,     20 

Ingraham    v.    Ingraham,     169     111.  Ore.  274;   11  L.  R.  A.  210 

43l-    169  111    472;   Rush  County  v.  iss  Conklin     v.     Davis,    63    Conn. 

Dinwiddle,    139    Ind.    128;    Pell    v.  377;  Mack's  Appeal,  71  Conn.  122; 

Mercer     14   R.   I.    412;    Barkley   v.  Alden   v.    St.    Peter;    158    111.    631, 

Donnelly,    112    Mo.    561;    Chase    v.  30     L.     R.      A.      232;     Church    v. 

Stockett'  72  Md.  235.  Shively,    67    mi.    493;     Sowers    v. 

153  Holmes   v.    Coates,    159   Mass.  Cyrenius,    39    0.    S.    29. 

296-   34  N.  E.  190.  ^=«  Dom.   etc.   Missionary   Society 

\54Rush    County    v.     Dinwiddie,  v.  Gaither,  62  Fed.  Rep    422;  Hew- 

139  Ind    128  5tt's   Estate,   94  Cal.   376;    Lane  v. 

■i55McAmster     v.     Burgess,     161  Etaon.    69    Minn.    141;    71    N.    W. 

Mass    269-   24  L.  R.  A.   158;  Mur-  1031;   Congregational,   etc.  Mission- 

phy's  Estate,   184   Pa.   St.   310.  ary   Society  v.  Van  Arsdall,  -  N 

..em  re  Hunter,  C.  A.   (1897),  2  J.  Eq.  -;   42  Atl.   1047  ;   Board  o 

Ch       105      (1897),      1      Ch.      518;  Foreign  Missions,  etc.  v.  Gulp,   151 

Mack's    Appeal,    71    Conn.    122;    41  Pa.   St  467.                     .-p    x    306- 

Atl    242-  In  re  Bartlett,  163  llass.  leo  Kelly  v.  Nichols,  1/  R.  L  306,. 


758  LAW    OF    WILLS. 

vise  to  a  church  directly,  Avithout  any  limitation  upon  its 
use,^*'^  and  a  condition  that  the  minister  of  such  religious 
society  shall  always  wear  a  black  gown  in  the  pulpit  is  valid 
and  enforceable.^®^ 

A  gift  to  a  Sunday  school  is  a  valid  gift  to  a  charity.^  ^'^ 
And  a  devise  to  a  religious  organization  which  is  not  Chris- 
tian in  its  claims  is  a  charitable  devise.^  *^^  But  a  private 
chapel  used  only  by  members  of  testator's  family  is  not  such 
a  religious  use  that  the  rules  of  charitable  uses  apply.^*^^ 

§650.     Masses. 

At  the  common  law  of  England  devises  for  masses,  and  the 
like,  were  held  to  be  void  as  against  public  policy.^  *^*^  This 
rule  was  the  outgrowth  of  judicial  decision  resting  upon  the 
statute  of  1  Edw.  VI,  a  statute  passed  largely  for  political 
considerations. 

In  the  United  States  no  such  statutes  are  in  force,  and  a 
devise  for  the  purpose  of  causing  prayers  to  be  said  for  tes- 
tator is  upheld  in  some  jurisdictions,^®'^  and  where  such  de- 
vises are  not  upheld  it  is  not  because  the  nature  of  the  use  is 
against  public  policy,  but  because  there  is  in  such  devise  no 
living  beneficiary  at  all,  for  whose  benefit  such  devise  could 
be  enforced.^®* 

§651.     Cemeteries. 

A  devise  to  maintain  a  cemetery  is  generally  upheld  as  a 
charity.^  ®^     But  a  devise  to  maintain  and  keep  up  a  private 

161 /n  re  White    (C.  A.),    (1892).  is?  Hoeffer  v.  Clogan,  171  111.  462 

2  Ch.  41;   Hewitt's  Estate,  94  Cal.  (where    it   was    presumed    that   the 

376.  masses  would  be  said  in  public)  ;  In 

te^in  re  Robinson    (1892),  1  Ch.  re  Sehouler,  134  Mass.  426;   Harri- 

95.  son  V.  Brophy,  59  Kan.  1 ;  40  L.  R. 

163  Knight's   Estate,    159    Pa.    St.       A.  721. 

500.  168  Festorazzi  v.  St.  Joseph's  Cath- 

164  Knight's  Estate,  159  Pa.  St.  olic  Church  of  Mobile,  104  Ala. 
500.  327;   25  L.  R.  A.   360;   O'Connor  v. 

165  Butler   V.   Trustees.     92    Hun,  Gifford,  117  N.  Y.  275. 

96.  169  Moore  v.  Moore,  50  N.  J.  Eq. 
166 /n  re  Blundell,  30  Beav.  360;  554;  25  Atl.  403;  Sheldon  v.  Stock- 
West  V.  Shuttleworth,  2  Myl.  &  K.  bridge,  67  Vt.  299. 

684. 


759 

LAW    OF    WILLS. 


tomb  is  not  held  to  be  a  good  charitable  devise/ ^^unless  espe- 
cially authorized  by  statute.^^^ 

But  a  provision  not  for  creating  a  trust,  but  merely  ior 
providing  for  the  funeral  of  testator's  widow,  and  for  erect- 
ing a  suitable  monument  over  her  grave,  is  not  a  charitable 
use,  since  it  can  Ix.  completely -performed  immediately  upon 
the  death  of  the  widow,  thus  ending  with  one  life  in  being 

A  trust,  the  income  to  be  expended  on  the  burial^  bt  and 
monument  of  testator    has  in  some  cases  been  upheld. 

§652.     Parks. 

The  establishment  of  a  public  park  and  playground  for 
children,  to  contain  statues  of  prominent  army  and  navy 
officers  of  the  civil  war,  was  held  a  good  charitable  devise.' 
So  a  bequest  of  a  fund,  the  income  of  which  is  m  part  to  be 
used  to  ornament  the  grounds  on  which  the  city  waterworks 
is  situated  is  a  valid  charitable  bequest.^^^ 

§653.     Miscellaneous  charitable  uses. 

A  devise  to  protect  and  aid  the  negroes  of  the  United  States 
has  been  held  valid.^^^  Bequests  for  the  advancement  of 
woman  suffrage  have  been  upheld  as  valid,^^«  and  a  devise  for 
the  purpose  of  promulgating  the  views  of  Henry  George  as  to 

XTO  Piper  V.  Moulton.  72  Me.  155 :  said  in  Ford  v.  Ford  91  Ky.  572  to 
Bates  V  Bates,  134  Mass.  110 ;  Hart-       come  under  the  heading     charitable 

Tl/-    Tl'olf  n  kMoo'Io       ''^:T^^   Estate,     181     Pa.    St. 
r  I    A  Tl3      ShLt  ;.   Ba'Jr,       109 ;  In  re  Bartlett,  163  Mass.  509 ; 

90  r'i   446-  40  L.  R.  A.  717.  40  N.  E.  899. 

20  K.  1.  440,  *u  J..  1^7  TT    S  174  Penny  v.  Croul,  7G  Mich.  471: 

171  Jones  V.  Habersham,  10/    U.  b.  -reuuy 

174;   Bronson  v.   Strouse,   57   Conn.  5  L.  R.  A   858.  ^  ^^  ^^    „ .    ,_- 

147     Hartson  v.  Elden,  50  N.  J.  Eq.  i"  Lewis'  Estate.     52  Pa.  St.  4^7^ 

5.9.   Moore  v.  Moore,  50  N.  J.  Eq.  Contra,      where     the     land     was 

%Z  Nauman  v.  Weidman,  182  Pa.  devised  in  Canada.    Lewis  v.  Doerle, 

St.  263;  Sheldon  v.  Stockbridge,  67  28  Ont.  Rep.  412. 
-.  176  Garrison  v.  Little.  7o  111.  App. 

*  Leonard  V.  Haworth,  171  Mass.      402.  T,a,-iUr.«   14  Al 

Contra,  JacksoTi  v.  Phillips,  14  Al- 

^172  Green    v.    Hogan,    153    Mass.      len   (Mass.),  539. 
462 ;       so   a   similar   provision   was 


760  LAW     OF     WFLLS. 

land  ownership  is  upheld  as  valid/ "^  and  for  the  suppression 
of  vivisection/ '^^  and  for  volunteer  regiment.^ '^^ 

Powers  ancillarv  to  the  execution  of  a  charitable  devise 
may  be  passed  bv  will  without  invalidating  the  devise.  Thus, 
a  devise  to  build  an  opera  house  and  orphan  asylum,  the  rents 
of  the  opera  house  to  be  used  in  supporting  the  orphan  asylum, 
was  upheld.^ ^'^  Thus  power  to  the  trustees  to  invest  personal 
property  in  real  securities  does  not  render  the  trust  invalid.^ ^^ 

And  such  powers  as  are  reasonable  must  be  implied  in  a  chari- 
table trust.  Thus  a  devise  to  pay  teachers  is  not  void  because  the 
will  made  no  specific  provision  for  fuel,  janitor  service,  and  the 
like,^''^^  nor  is  the  trust  invalidated  by  a  grant  of  authority 
to  the  judges  who  appoint  the  trustees  to  make  rules  for  their 
government.-^  ^^ 

§654.     Uses  not  charitable. 

Uses  which  do  not  come  within  the  definition  of  charitable 
use  can  not  be  created  by  devise  if  vesting  at  a  further  time 
than  that  limited  by  the  rule  against  perpetuities,  or  if  the 
beneficiary  is  indefinite.  Thus,  a  devise  in  trust  to  provide 
an  annual  trophy  cup  as  a  prize  in  yachting  is  not  a  charity.^ ^** 
ISTor  is  an  order  to  trustees  to  keep  testator's  house  open  for 
''ministers  and  others  travelling  in  the  service  of  the 
truth."  i'^^ 

Where  an  object  not  regarded  as  charitable  is  included 
among  charitable  objects,  the  devise  is  avoided.  Thus  a  devise 
''for  some  one  or  more  purposes,   charitable,   religious,   phil- 

177  George  v.   Braddock,  4C  K.  J.  isi /n  re  Hamilton   (1896),  2  Ch. 

Eq.  757;   G  L.  E.  A.  511,  reversing  617. 

44  N.  J.  Eq.  124.  i^^  Grand     Prairie     Seminary     v. 

178 /n,  re  Foveaux    (1895),  2  Ch.  Morgan,  171   111.  444. 

501 ;   04  L.  J.  Ch.  N.  S.  856.  i83  John's  Will,  30  Oreg.  494 ;   47 

179 /n-    re    Lord    Stratheden     and  Pac.  341;   36  L.  R.  A.  242. 

Campbell    (1894),  3  Ch.  265;   Phil-  is* /w  re  Nottage    (1895),   2   Ch. 

adelphia   v.    Keystone   Battery,    169  649. 

Pa.   St.   526.  185  Kelly  v.  Nichols,  17  R.  I.  306; 

isoBarkley  v.  Donnelly,   112  Mo.  19  L.  R.  A.  413. 
561. 


LAW     OF     WILLS. 


761 


anthropic  or ,"  was  by  very  strict  construction  held  bad, 

not  only  because  of  the  blank,  but  as  not  purely  a  charitable 
purpose,^ *^^  and  by  like  construction  a  devise  "to  humanity's 
friend  A  ...  to  use  and  expend  the  same  for  the  promotion 
of  the  religious,  moral  or  social  welfare  of  the  people  in  any 
locality,"  was  held  to  include  objects  not  charitable.^ ^'^ 

§655.     The  doctrine  of  cy  pres. 

The  question  of  the  validity  of  charitable  devises,  and  the 
control  of  equity  courts  over  them,  is  somewhat  complicated 
by  the  different  views  taken  by  different  courts  of  the  extent 
of  the  application  of  the  doctrine  which  is  generally  known 
as  the  "doctrine  of  cy  pres." 

The  English  chancery  courts,  according  to  the  more  prob- 
able view  of  the  development  of  equity,  assumed,  at  a  very 
early  date,  that  where  it  appeared  from  the  will  to  be  tes- 
tator's intention  that  the  property  disposed  of  by  will  should 
be  applied  to  charity  in  general,  and  indicated  in  his  will  the 
means  whereby  such  application  should  be  made,  and  it  sub- 
sequently, by  change  of  circumstances  or  a  change  of  the  law, 
became  impracticable  to  administer  the  charitable  trust  in 
the  manner  provided  for  by  testator  in  his  will,  the  court 
of  equity  was  empowered  to  construct  a  scheme  of  charitable 
disposition  as  near  as  possible  to  the  original  purpose  de- 
scribed by  testator  in  his  will,  and  to  apply  the  property  dis- 
posed of  by  will  to  the  purposes  of  the  kindred  trust. 

This  statement  of  the  origin  of  the  doctrine  of  cy  pres  is 
not  unanimously  acquiesced  in.  It  is  undoubtedly  true  that 
equity  originated  at  a  time  when  the  distinction  between  ex- 
ecutive, legislative  and  judicial  power  Avere  not  marked  and 
distinguished  as  they  now  are.  The  gift  was  undoul)tedly  a 
source  of  both  executive  and  judicial  power ;  the  judicial 
power  of  a  court  of  equity  being  a  delegation  from  the  crown. 
In  some  cases,  the  courts  of  chancery  exercised  powers  which 
were  generally  held  not  to  be  part  of  their  normal  judicial 

186 /to  re  Macduff  (1896),  2  Ch.  204,  affirmed  as  Cliadwick  v.  Live- 
451.  sey,  56  N.  J.  Eq.  453;  41  Atl.  1115. 

isT  Livesey  v.  Jones,  55  N.  J.  Eq. 


762  LAW     OF     WILLS. 

functions,  but  to  be  especially  delegated  to  them  under  the 
sign  manual  of  the  crown. 

By  this  delegated  prerogative  power  the  courts  of  equity 
often  practically  create  schemes  of  charitable  disposition,  and 
thus  preserve  a  gift  which,  as  it  originally  stood,  would  have 
been  too  vague  and  indistinct  for  execution. 

The  English  courts  still  apply  the  doctrine  of  cy  pres  in 
the  fullest  and  widest  sense  of  the  doctrine. 

Under  their  system  of  government,  being  unrestrained  by 
a  written  constitution,  the  English  courts  may  safely  follow 
their  old  precedents  without  disturbing  themselves  as  to 
whether  it  is  strictly  judicial  power  or  power  originally  of 
the  royal  prerogative  that  they  are  exercising. 

A  somewhat  different  question  is  presented  in  the  United 
States  of  America.  The  written  constitution  of  these  states 
separate  executive  and  judicial  power  almost  entirely,  and 
if  a  power  is  recognized  in  its  nature  to  be  executive,  the  judi- 
ciary can  not  exercise  it,  even  though  English  courts  under 
similar  circmnstances  might  exercise  similar  power. 

Accordingly,  the  question  of  the  extent  to  which  the  doc- 
trine of  cy  pres  originated  in  principles  of  equity  on  the  one 
hand,  or  in  the  prerogative  of  the  royal  crown  on  the  other, 
is  a  very  important  question  for  the  American  courts 
to  solve,  in  determining  the  extent  to  which  they  will  recog- 
nize the  doctrine  of  cy  pres  as  in  force  in  their  jurisdiction. 

The  states  which  do  not  recog-nize  charitable  trusts  as  a 
branch  distinct  from  other  trusts  need  not  be  considered  here. 

Of  the  states  which  recognize  charitable  trusts  as  a  class 
of  trust  having  peculiarities  of  its  own,  three  classes  may  be 
made,  according  to  the  view  which  they  taie  of  the  doctrine 
of  cy  pres. 

States  of  the  first  class  reject  the  doctrine  of  cy  pres  en- 
tirely. They  take  the  view  that  it  is  not  a  power  strictly  ju- 
dicial in  its  nature;  that  it  originates  in  the  exercise  of  the 
royal  prerogative,  and  could  not  under  our  form  of  gov- 
ernment be  exercised  by  a  court.^^^ 

188  Keith    V.    Scales,    124     N.     C.  "It  is  settled  that  the  doctrine  of 

497;  MeHugh  v.  McCole,  97  Wis.  vy  pres— as  it  is  exists  in  England, 
166;  40  L.  R.  A.  724.  and  as  it  has  been  applied  in  some 


LAW    OF    WILLS.  '  ^^ 

The  second  class  of  states  takes  the  view  upon  the  histor- 
ical side  of  the  question  that  the  doctrine  of  cy  pres  orig- 
inated to  a  very  considerable  extent  in  the  doctrines  of  equity 
as  distingiiished  from  the  exercise  of  the  royal  prerogative, 
and  accordingly  hold  that  they  have  a  right  to  apply  the  doc- 
trine as  fully  as  it  was  recognized  and  applied  in  England, 
apart  from  the  exercise  of  power  in  England  under  the  sign 
manual  of  the  cro^vn.^^^ 

In  states  of  this  class  will  be  found  some  in  which  the 
doctrine  of  cy  pres  was  not  recognized  originally,  but  in  which 
it  has  been  to  some  extent  recognized  and  adopted  by  stat- 
ute.i^°  In  states  taking  this  view  of  the  doctrine  of  cy  pres 
it  has  been  held  that  where  the  will  shows  the  intention  of 
the  testator  to  promote  the  cause  of  education  in  a  certain 
school  district,  and  that  a  bequest  in  the  will  for  the  support 
of  the  public  school  of  the  specified  district  is  a  means  of 
carrying  out  this  general  intention,  upon  the  abolition  of  the 
school  district  the^fund  should  be  applied  to  the  education  of 
persons  residing  in  the  territory  comprised  in  the  former 
district,   even  though   an   incidental  benefit  to   others   should 

result.^  ^^ 

In  these  states  the  applicability  of  the  doctrine  of  cy  pres 
turns  upon  the  question  of  whether  the  will  shows  that  testator's 
general  intention  was  that  the  property  disposed  of  by  will 
should  be  applied  to  charity  in  any  event,  the  form  which  the 

of  the  states  of  the  American  Union,  27G;  Ruth  v.  Oberbrunner,  40  Wis. 

whereby  trust  provisions  are  admin-  238. 

istered  and  executed  as  near  to  the  i89  Church  of  Jesus  Christ  of  the 

presumed  intention  of  the  donor  or  Latter    Day    Saints   v.    The   United 

founder    as    may    b^is    not   recog-  States,     136    U.     S.     1 ;     Ingraham 

nized   or  acted  upon  by  the  courts  v.    Ingraham,    169    111.    432,    472; 

of  this   state  as   a  part  of   the  ju-  Forbes   v.   The   Ft.   Scott   Board   of 

dicial  power  of  the  state.     The  doc-  Education,  7  Kansas  App.  452;  At- 

trine   rests   upon    a   prerogative   or  torney  General  v.  Briggs,  164  Mass. 

sovereign  power,  is  not  strictly  ju-  561;   38  U.  R.  A.  629. 

dicial  in  its  nature,  and  consequent-  i9o  Woodruff  v.   Marsh.   63  Conn. 

Iv  the  courts  of  the  state  could  not  125;    38    American    State    Reports. 

exercise  it."  346  ;  Allen  v.  Stevens.  22  Misc.   (N. 

McHugh  V.  McCole,  97  Wis.  166;  N.).  158;  49  N.  Y.  Supplement.  431. 

40  L.  R.  A.  724 ;   Fuller's  Will,  75  i^i  Attorney   General     v.     Briggs, 

Wis.  431  ;  Heiss  v.  Murphy,  40  Wis.  164    Mass,    561. 


764  LAW     OF     WILLS. 

charitable  gift  assumes  being  testator's  particular  intent;  or 
whether  he  intended  the  gift  not  to  be  devoted  to  charity  at  all 
unless  in  the  manner  specified  in  his  will.-^^^  Thus  where  a  testa- 
tor devised  property  for  the  purpose  of  building  a  chapel,  which 
purpose  failed  because  the  population  of  that  place  was  de- 
creasing in  numbers  so  as  to  no  longer  support  a  chapel,  and 
the  ecclesiastical  authorities  had  abolished  the  official  standing 
of  the  church  at  such  place,  it  was  held  that  as  the  will  did 
not  show  the  testator's  general  intention  to  benefit  the  people 
of  that  town,  the  court  could  not,  under  the  doctrine  of  cy  pres, 
allow  the  property  devised  to  be  devoted  to  repairing  a 
neighboring  parish  church,  or  to  enlarge  a  graveyard  for  the 
parish.     The  bequest  was  held  to  fail  entirely.^ ^^ 

States  of  the  third  class  take  a  position  intermediate  between 
the  states  of  the  other  two  classes.  They  decline  to  recognize  the 
English  doctrine  of  the  courts  of  chancery  to  construct  a  scheme 
of  charitable  disposition  as  a  complete  substitute  for  one  which 
has  failed. 

On  the  other  hand,  they  do  recognize  the  power  of  the  courts 
to  provide  different  methods  of  carrying  out  the  scheme  created 
by  testator,  where  such  scLeme  as  a  whole  is  practicable,  though 
certain  details  may  not  be.  Thus,  where  testator  created  a 
trust  fund  for  educational  purposes,  and  provided  that  it  should 
be  invested  in  certain  specified  securities,  it  was  held  that  the 
court  could  direct  its  investment  in  other  securities  where  those 
specified  in  testator's  will  had  become  non-existing  or  worth- 
less.^®^ 


192  "In  the  administration  of  purpose  as  possible.  This  is  corn- 
trusts,  under  the  general  equity  ju-  monly  known  as  the  doctrine  of  cy 
risdiction  of  the  court,  it  is  an  old  pres,  which,  in  its  last  analysis,  is 
and  familiar  principle  that  if  the  found  to  be  a  similar  rule  of  ju- 
original  purpose  of  a  public  charity  dicial  construction  designed  to  aid 
failed  and  there  are  no  other  ob-  the  court  to  ascertain  and  carry 
jects  to  which,  under  the  specified  out,  as  near  as  may  be,  the  true 
terms  of  the  trust,  the  funds  can  intention  of  the  donor.''  Doyle  v. 
be  applied,  the  court  may  dtermine  Whalen,  87  Me.  414;  Jackson  v. 
whether,  in  the  event  that  has  hap-  Phillips,  14  All.  ,539. 
pened,  it  was  not  the  probable  in-  iss  Teele  v.  The  Bishop  of  Der- 
tention  of  the  donor  that  his  gift  ry,  168  Mass.  341;  38  L.  R.  A.  629. 
should  be  applied  to  some  kindred  i94  Mclntire  v.  Zanesville,  17  O. 
charity,    as    near    like    the    original  S.   352. 


•LAW     OF    WILLS. 


765 


Where  testator  had  created  a  trust  fund  for  the  education 
of  the  poor  children  of  a  certain  city,  which  plan  subsequently 
became  impracticable  by  reason  of  the  creation  of  free  public 
schools  supported  by  taxation,  it  was  held  that  the  trust  fund 
should  not  be  paid  into  the  treasury  of  the  school  board,  but 
that  it  should  be  devoted  to  any  other  means  in  aid  of  the 
education  of  the  poor  children  incidentally  to  and  ancillary 
of  the  public  school  system,  as  the  trustees  might  deem  advis- 
able.^ ^^  Where  testator  provided  for  the  education  of  children 
of  a  certain  city  it  was  held  that  this  included  the  city  as  sub- 
sequently enlarged  by  annexation  of  territory.^ ^"^ 

195  Mclntire   v.   Zanesville,    17    0.  ment  of  night  schools  for  such  poor 

S.    352.      (The   decree   in    this   case  children  as  could  not  attend  the  day 

pointed  out  the  relief  of  the  wants  schools,  would  be  a  substantial  com- 

and    interests    of    poor    children    in  pliance  with  the  trust.) 
such  a  way  as  to  make  their  edu-  i9<5  Mclntire  v.   Zanesville,    17   O, 

cation   in   the   public   schools   possi-  S.  352;  Zanesville  Canal  and  Manu- 

ble,  as  a  proper  expenditure  of  the  facturing  Company  v.   The  City  of 

trust  fund;   and  in  its  opinion  the  Zanesville,  20  Ohio.  483. 
court  intimated  that  the  establish- 


766  LAW     OF     WILLS. 


CHAPTER  XXIX. 

VESTED  AND  CONTINGENT  INTERESTS. 


§656.     Vested  and  contingent  interests Definitions, 

A  vested  interest  is  one  in  which  there  is  a  present  fixed 
right,  either  of  present  enjoyment  or  of  future  enjojTnent.^ 

A  contingent  interest  is  one  in  which  there  is  no  present 
fixed  right  of  either  present  or  fntnre  enjovment;  but  in 
which  a  fixed  right  will  arise  in  the  future  under  certain 
specified  contingencies.^ 

It  can  readily  be  seen  that  it  is  often  a  matter  of  great  im- 
portance to  determine  whether  a  beneficiary  imder  a  will 
takes  a  vested  or  a  contingent  interest.  We  are  met  at  the 
outset,  however,  with  considerable  confusion  in  definition. 
The  courts  are,  by  no  means,  harmonious  as  to  the  true  test 
for  determining  whether  an  interest  is  vested  or  contingent. 

It  is  well  settled  that  where,  under  the  terms  of  the  gift, 
there  is  an  ascertained  person  in  existence  who  could  take 
the  remainder  in  possession  immediately  upon  the  determin- 
ation of  the  particular  estate,  and,  by  the  terms  of  the  gift, 

1  Cox  V.  Handy,  78  Md.   108.  in  presenti,  although  to  be  enjoyed 

2  Kingman  v.  Harmon,  131  111.  in  the  future.  A  contingent  re- 
171;  Hale  v.  Hobson,  167  Mass.  mainder  is  an  estate  to  vest  upon 
^^''  the     happening     of     some      future 

"A  vested  remainder  is  an  estate       event."     Spear  v.  Fogg,  87  Me.  132. 


LAW     OF     WILLS.  '"' 


the  particular  estate  must  determine  by  the  mere  efflux  of 
time,  the  estate  is  vested.^ 

Where,  under  tiie  terms  of  the  gift,  there  is  no  ascertained 
person  in  being  who  could  take  if  the  particular  estate  were 
at  once  to  determine,  or  where  the  remainderman  is  ascer- 
tained by  the  terms  of  the  gift  but  he  can  not  take  upon  the 
determination  of  the  praticular  estate,  unless  some  other  or 
further  event  occurs  before  such  determination,  it  is  well 
settled  that  the  estate  is  a  contingent  one.^ 

There  is,  however,  a  large  class  of  cases  which  some  courts 
class  as  vested  and  others  as  contingent.  These  are  cases  where 
there  are  in  existence  persons  who,  by  the  terms  of  the  gift,  could 
take  if   the  particular  estate  were  to  determine  at  once,  but  who 
may    bv  conditions  subsequent,  be  incapable  of  taking  if  the 
particular  estate  should  determine  at  a  future  time.     In  this 
class  of  cases  the  usual  contingency  inserted  is  either  an  ex- 
press or  implied  provision  that  any  of  the  beneficiaries  who 
die  before  determination  of  the  particular  estate  shall  thereby 
be  divested  of  all  their  interest  in  remainder,  and  that  sub- 
sequently born  beneficiaries  may   take;    as   where   the  estate 
is  given' to  one  for  life  and  upon  his  death  to  such  of  his  chil- 
dren as  may  be  alive  at  the  death  of  the  life  tenant.     It  is,  m 
such  cases,  impossible  to  determine  who  the  beneficiaries  will 
be,  until  the  particular  estate  determines.     In  cases  like  this, 
some  authorities  call  the  interest  of  the  children  a  vested  in- 
terest, subject  to  be  divested  by  a  condition  subsequent. 

3Mc4rthur    v.    Scott,    113    U.    S.  119,    citing    and    following    Putnam 

340 ;  Cox  V.  Handy,  78  Md.  108.  v.  Story,  132  Mas.  205  ^  Darhng  v. 

^kingman    v.    Harmon,    131    111.  Blanchard,    109    Mass     16;    Blan 

171;    Hale    v.    Hobson,    167    Mass.  chard   v.    Blanchard     1    Allen,   223 

397;     Shaw    v.    Eckley,    169    Mass.  Smither    v.    W^ock,    ^    V-.    233, 

119;  Wright  V.  Brown,  116  N.  Car.  L'Etorneau  v.  Henquenet  89  Mich. 

26;    Richey    v.    Johnson,    30    O.    S.  428;   28  Am.  St.  Rep^  310. 
288;  Hamilton  v.  Rodgers,  38  O.  S.  "When   the   remainder   is   so   lim- 

2^2  ited  as  to  take  effect  in  possession, 

5Ke    Pickworth     (C.    A.),    1809,  if  ever,  immediately  upon  the  deter- 

1  Ch    642-  68  L.  J.  Ch.  N.  S.  324;  mination    of     a     particular     estate, 

Kean  V.  Tilford,  81  Ky.  600;  Gough  which  estate  is  to  determine  by  an 

V    Clifton   Land    Co.    (Ky.).   43    S.  event  which  must  unavoidably  ha p- 
W    405-   Shaw  V.  Ecklev,  169  Mass.       pen  by  efflux  of  time,  the  remainder 


768 


LAW     Ol''     WILLS. 


A  remainder  to  A  on  the  determination  of  a  particular 
estate  which,  is  made  conditional  upon  his  surviving  until  the 
determination  of  the  particular  estate,  and  adding  a  gift  over 
in  case  the  remainderman  dies  without  issue  before  the  par- 
ticular estate  determines,  is  held  to  be  a  vested  and  not  a  con- 
tingent one.^ 

In  other  cases  such  a  gift  is  treated  as  a  contingent  devise 
on  the  theory  that  it  is  impossible  to  determine  who  the  re- 
maindermen are  until  the  determination  of  the  particular  es- 
tate.'^  So  a  remainder  to  the  children  of  A  or  the  survivors  of 
them  at  the  time  of  taking  possession  is  said  in  some  juris- 
dictions to  be  a  contingent  remainder.^ 

The  view  taken  in  these  cases  makes  every  gift  to  a  class 
to  be  determined  at  the  determination  of  the  particular  estate 
a  contingent  remainder.  Thus  a  gift  tp  A  for  life  and  at  hia 
death  to  his  children  and  the  heirs  of  such  as  might  be  de- 
ceased,^ or  to.  A's  children  or  the  survivors  of  them,^*^  or  to 
A's  legal  heirs,-^^  is  held,  where  such  view  obtains,  to  be  a  con- 
tingent remainder. 


vested  in  interest  as  soon  as  the 
remainder  man  is  in  esse  and  ascer- 
tained; providing  that  nothing  but 
his  o\^'n  death,  before  the  determi- 
nation of  the  particular  estate,  will 
prevent  such  remainder  from  vest- 
ing  in  possession." 

Moore  v.  Lj-ons,  25  Wend.  (N. 
Y.),  119,  quoted  in  Cox  v.  Handy, 
78  Md.  108,  citing  and  following 
Doe,  lessee  of  Poor  v.  Considine,  6 
Wall.  U.  S.  458  ;  McArthur  v.  Scott, 
113  U.  S.  340;  Blanchard  v.  Blan- 
chard,  1  Allen,  Mass.  223. 

6  See  cases  cited  in  last  note.  The 
reason,  which  on  principle,  seems 
sound,  is  that  during  A's  life  there 
is  a  remainderman  in  being  capable 
of  taking  at  once  if  the  particular 
estate    were    to    determine. 

7  Owen  V.  Eaton,  56  Mo.  App. 
563;  Sager  v.  Galloway,  113  Pa.  St. 
500  (a  gift  to  A  on  his  reaching 
21). 


sMcClain  v.  Capper,  98  lo.  145; 
67  N.  W.  102;  Spear  v.  Fogg,  87 
Me.  132,  citing  Richardson  v. 
Wheatland,  7  Met.  169;  Putnam 
V.  Gleason,  99  Mass.  454;  Smith 
V.  Rice,   130  Mass.  441. 

"Our  conclusion  ( in  holding  the 
devise  contingent)  is  much  aided 
by  the  language  of  the  will,  mak- 
ing the  devise  in  this;  that  the 
division  is  to  be  made  between  the 
children  named,  their  heirs  or  sur- 
vivors of  them;  indicating  that 
the  property  was  to  rest  in  Mar- 
garet if  she  survived,  and  if  not, 
in  her  heirs,  or  their  survivors, 
as  they  might  be  living  to  receiA^e 
it."  McClain  v.  Capper,  98  lo. 
145. 

9  Hunt  v.  Hall,  37  Me.  363. 

10  Spear  v.  Fogg,  87  Me.  132; 
Denny  v.  Kettle,  135  Mass.  138. 

11  Read  v.  Fogg,  60  Me.  479. 


LAW     OF     WILLS.  769 

§657.     Importance  of  distinction  between  vested  and  contingent 
interests. 

The  distinction  between  a  vested  and  contingent  interest  is 
of  practical  importance  in  many  cases.  For  instance^  if  the 
remainderman  dies  before  the  life  tenant  his  interest,  if 
vested  and  unconditional,  passes,  to  his  heirs  or  next  of  kin,^^ 
or  to  his  devisee.-^^  Under  the  laws  njion  the  subject  of  the  set- 
tlement of  decedent's  estate,  however,  payment  of  a  legacy  in 
money  or  a  bequest  of  personal  property  should  be  made  to  the 
executor  or  administrator  of  the  deceased  beneficiary,  and  not 
directly  to  his  next  of  kin.^^ 

A  contingent  remainder  fails  under  such  circumstances.^^ 
A  contingent  interest  may,  of  course,  be  assigned  when  the 
contingency  is  one  of  the  person,  subject,  of  course,  to  the 
contingency  that  the  interest  may  never  vest.-^^ 

§658.     General  rule  of  construction  as  between  vested  and  con- 
tingent interests. 

As  between  the  vested  and  contingent  interests  the  law, 
wherever  possible,  construes  the  interest  as  vested.  "The  law 
alwaj^s  gives  preference  to  vested  over  contingent  remainders. 
It  does  not  favor  the  abeyance  of  estates.  Where  it  is  a  remain- 
der after  a  life  estate,  it  is  regarded  as  a  vested  remainder,  and 
the  possession  only  is  postponed."^'''  The  law  favors  early  vesting 

12  Holcomb   V.    Wiig'lit,    5    Appeal  "Such    interest    is    devisable,    trans- 

D.    C.    76;    Cliapin   v.    Parker,    157  ferable   and    assignable,    subject,    of 

Mass.    63;    Bancroft    v.    Fitch,    164  course,  to  the  contingency  upon  the 

Mass.  401 ;  In  re  Seebeck,  140  N.  Y.  happening   of   which   its    value    de- 

241.  pends."      Curamings  v.    Sterns,    161 

isMcClain     v.     Cappei-,     98     To.  Mass.  506. 

145.  iTMcConnell   v.   Stewart,   169   111. 

14  Banning  V.  Gottshall,   62   0.   S.  374;    Bethea   v.     Bcthea,     116     Ala. 

210:  Chafee  v.  Maker,  17  B.  I.  739.  265;  Beckley  v.  Leffingwell,  57  Conn. 

isMcClain  v.  Capper,  98  To.  145;  163;  Newberry  v.  Hinman,  49  Conn. 

Spear   v.    Fogg,    87    Me.    132;    Hale  130;  Legwin  v.  McBee,  79  Ga.  430: 

v.   Hobson,   167   Mass.   397.  Gingrich  v.  Gingrich,  146  Ind.  227 ; 

16  Shaw  V.  Eckley,  169  Mass.  119;  Hoover    v.    Hoover,    116    Ind.    498; 

Wright    V.    Bro^vn,    116    N.    C.    26;  Borgner    v.    Brown,    133    Ind.    391; 

Watson    v.    Smith,    110    N.    C.    6;  Wright   v.    Charley,    129    Ind.    257; 

Foster  v.  Hackett,   112   N.   C.   546.  Scofield    v.    Olcott,    120    111.    262; 


770  LAW    OF    WILLS. 

of  estates  with  especial  insistence  when  a  possible  construc- 
tion is  presented  which  will  delay  vesting  so  long  as  to  violate 
the  rule  against  perpetuities.  In  such  case,  if  it  can  be  done 
consistently  with  testator's  intention,  the  law  will  adopt  the 
construction  which  causes  the  estate  to  vest  within  the  period 
fixed  by  the  rule.^*  As  long  as  testator  does  not  violate  the 
rule  against  perpetuities,  the  law  will  permit  him  to  create  a 
contingent  remainder,  and  while  a  construction  which  favors 
early  vesting  rather  than  deferred  vesting  is  always  pre- 
ferred, the  question  is,  after  all,  one  of  the  intention  of  the 
testator.  If  he  clearly  shows  his  intention  to  defer  the  vest- 
ing of  the  estate,  that  intention  must  be  given  effect  as  long 
as  it  does  not  violate  the  rule  against  perpetuities.^^ 

In  determining  testator's  intention,  great  difficulty  is  some- 
times experienced  on  account  of  the  fact  that  testator  has 
often  no  clear  idea  himself  when  the  estate  is  to  become  vested, 
and  probably  does  not  appreciate  the  difference  between  vested 
and  contingent  interests.  Some  general  rules  have  been 
worked  out  for  ascertaining  testator's  probable  intention,  whicii 
are  given  in  the  following  sections.  These  rules  are  strictly 
rules  of  construction,  and  have  no  application  where  the  will 
clearly  shows  whether  testator  intended  to  create  a  vested  or 
a  contingent  interest. 

§659.     Interests  in  realty Effect  of  postponement  of  possession. 

Where  testator  devises  real  property  by  will  to  specified  per- 
sons in  being,  without  imposing  any  additional  contingencies 
upon  their  taking  the  property,  the  fact  that  they  are  not  to 
enter  into  enjo\mient  of  possession  of  the  land  devised  until 
after  the  determination  of  the  particular  estate  given  by  will 

Grimme  v.   Friodlieh,   104  111.  245;  Eq.  28;  Linton  v.  Laycock,  33  O.  S. 

Pike  V.   Stephenson,   99  Mass.   188;  128;      Bridgewater     v.     Gordon,     2 

Crisp    V.    Crisp,    61    Md.    149;    Cox  Sneed.    (Tenn.),  5;  Weatherhead  v. 

V.    Handy,    78    Md.    108;    Stokes   v.  Stoddard.    58    V\.    529;     Stokes    v. 

Weston.   142  X.  Y.  433;   Byrnes  v.  Van   Wyck,   83   Va.   724;    Baker  v. 

Stilwell,    103  N.  Y.   453;    Campbell  McLeod.     79    Wis.    534;     Scott    v. 

V.  Beaumont.  91  N.  Y.  464;   Penn-  West,  63  Wis.  562. 

sylvania   Co.'s   Appeal,    109   Pa.   St.  ^  See  Sec.  465. 

489;    Smith   v.   Hilliard,    3    Strobh,  is  Denn  v.  Baorshaw,  6  T  R.  512; 

211;    Kimble    v.    White,    50    X.    .T.  Shaw    v.    Eckley,    169    Mass.    119; 


LAW    OF    WILLS. 


771 


to  some  other  person,  does  not  prevent  the  interest  of  tke  re- 
maindermen from  being  a  vested  interest  upon  the  death  of 
the  testator.-" 

Where  the  devise  is  to  a  remainderman  'from  and  after,"  the 
death  of  the  life  tenant,  it  is  held  that  the  remainders  vest  at 
the  death  of  testator.^^  So  where  there  is  a  direction  to  ex- 
ecutors to  take  charge  of  and  improve  real  estate  until  a  cer- 
tain time,  when  it  is  to  belong  to  designated  persons,  these  per- 
sons take  a  vested  remainder  at  testator's  death.^^ 

Equitable  estates,  the  enjoyment  of  which  is  postponed  until 
the  determination  of  the  life  estate,  vest  upon  testator's  death 
in  the  same  manner  as  legal  estates,^^  So  where  the  remain- 
dermen were  to  enter  into  possession  on  arriving  at  a  certain 
age,  an  intermediate  estate  being  created  and  no  contingency 
or  limitation  being  expressed,  the  remainder  vests  at  once  on 
testator's  death.^'* 


Hayes  v.  Tabor,  41  N.  H.  521;  Stri- 
ker V.  Mott,  28  N.  Y.  82;  Wright 
V.  BrowTi,  116  N.  Car.  20;  Hamil- 
ton V.  Rodgers,  38  O.  S.  242;  Bald- 
win V.  Humphrey,  4  Ohio  C.  C. 
57;  In  re  Spencer,  16  R.  I.  25. 

20Halsey  v.  Goddard,  86  Fed.  25; 
Harrison  v.  Moore,  64  Conn.  344; 
Wright  V.  Gooden,  6  Hous.  (Del.), 
397 ;  Marshall  v.  Augusta,  5  App. 
D.  C.  183;  Woodward  v.  Stubbs,  102 
Ga.  187;  Knight  v.  Pottgieser,  176 
111.  368;  Springer  v.  Savage,  143 
III.  301;  Aspey  v.  Lewis,  152  Ind. 
493 ;  McKensey  v.  McKensey,  — 
Ky.  —  (1895)  ;  28  S.  W.  782;  Wil- 
liams V.  Williams,  91  Ky.  547; 
Ernst  V.  Northern  Bank  (Ky.), 
(1899);  49  S.  W.  333;  Woodman 
V.  Woodman,  89  Me.  128 ;  Dulaney 
V.  Middletown,  72  Md.  67 ;  State  ex 
rel.  V.  Willrich,  72  Minn.  165;  Col- 
lier's Will,  40  Mo.  287;  Linton  v. 
Laycock,  33  O.  S.  128;  Foster  v. 
W?ek,  17  Ohio,  B50;  Brasher  V. 
Marsh,  15  0.  S.  103;  Jeremy' si  Es- 
tate, 178  Pa.  St.  477;  Snyder's  Es- 
tate, ISO  Pa.  St.  70;  Brabham  V. 
Crosland,  25  S.  C.  525;  MeComb  ~v. 


McComb,  96  Va.  779;  Hall  v.  Hall, 
98  Wis.  193, 

21  Gingrich  v.  Gingrich,  146  Ind. 
227;  Hoover  v.  Hoover,  116  Ind. 
498;  Nelson  v.  Russell,  135  N.  Y. 
137 ;  Hersee  v.  Simpson,  154  N.  Y. 
496. 

22  Heinrichsen  v.  Heinrichsen,  172 
111.  462:  Toner  v.  Collins,  67  lo. 
369 ;  Lowe  v.  Barnett,  38  Miss.  329 ; 
Christofferson  v.  Pfennig,  16  Wash. 
491. 

23  Bolton  V.  Banks,  50  0.  S.  290. 

24  Poor's  Lessee  v.  Considine,  6 
Wall.  458;  Cropley  v.  Cooper,  19 
Wall.  167;  Danforth  v.  Talbot,  7 
B.  Mon.  623:  McArthur  v.  Scott, 
113  U.  S.  340;  Watkins  v.  Quarles, 
23  Ark.  179:  Tayloe  v.  Mosher,  2^ 
Md.  443 ;  Hancock  v.  Titus.  39  Miss. 
224;  Byrne  v.  France,  131  Mo.  639; 
Linton  v.  Laycock,  33  O.  S.  128; 
Harris   v.    Alderson.    4    Sneed.    250. 

Contra,  McClain  v.  Capper,  98  lo. 
145;  67  N.  W.  102  (where,  how- 
ever, the  gift  was  "when  my  young- 
est son  arrives  at  full  age.  I  desire- 
that  the  real  estate  be  equally  di- 
vided between  my  children,  their 
heirs    or   the   survivors   of   them"). 


772  LAW    OF     WILLS. 

Where  the  devise  to  beneficiary  creates  no  intermediate  es- 
tate and  postpones  the  enjoyment  of  the  realty  devised  to  some 
future  time,  testator's  intention  is  so  much  the  more  doubtful. 
The  test  for  determining  testator's  intention  prima  facie  in  case 
of  such  a  gift  is  this.  If  the  devise  is  given  in  terms  absolute  on 
its  ;face  and  is  followed  by  a  provision  that  devisee  is  not  to 
receive  the  devise  until  the  future  time  or  future  event  speci- 
fied, the  devise  is  treated  as  a  vested  one,  subject,  of  course, 
to  be  divested  upon  non-performance  of  the  conditions  speci- 
fied in  the  will.^^  But  where  the  condition  is  so  closely  con- 
nected with  the  devise  as  to  qualify  its  very  existence,  a  de- 
vise to  rest  in  the  future  where  no  intermediate  estate  is  cre- 
ated and  the  condition  refers  to  the  capacity  of  the  beneficiary, 
as  his  reaching  a  certain  age  and  the  like,  is  prima  facie 
held  to  be  a  contingent  devise.^^ 

Where  the  condition  does  not  refer  to  the  devisee  but  to 
testator's  estate,  a  different  result  is  generally  reached  by  the 
courts.  Since  it  is  in  every  case  a  question  of  testator's  inten- 
tion, and  the  presumption  is  always  in  favor  of  vested  interests, 
it  is  held  that  postponement  of  possession  for  purposes  con- 
nected with  the  settlement  of  testator's  estate  does  not  show 
an  intention  to  postpone  the  vesting  of  the  interest  until  that 
time.^'^ 

The  context  may  qualify  the  general  rule  that  a  devise  to 
one  to  begin  in  the  future  without  any  intervening  estate 
is  contingent  if  postponed  on  account  of  the  devisee,  by  any 
form  of  expression  showing  that  testator  regarded  the  interest 
as  in  its  nature  vested.  The  commonest  type  of  such  modify- 
ing context  is  found  wdiere  testator,  after  devising  property 
to  A  upon  his  reaching  some  given  age,  or  upon  some  similar 
event,  provides  for  a  gift  over  to  B  in  case  A  dies  before 

25  Andrew  v.  Andrew,  1  Ch.  D.  Colt  v.  Hubbard,  33  Conn.  281; 
410;  Shrimpton  v.  Shrimpton,  31  Phayer  v.  Kennedy,  169  111.  360; 
Beav.  425  ;  Mont^omerie  v.  Woodley,  McClain  v.  Capper,  '98  lo.  145  ;  Daw- 
5  Ves.  Jr.  522 ;  Meyer  v.  Eisler.  29  son  v.  Schaefer,  52  N.  J.  Eq.  341 ; 
Md.  28;  Packard  v.  Packard,  16  Whitesides  v.  Cooper,  115  N.  Car. 
Pick.  191;  Foster  v.  Wick,  17  Ohio,  570;  Handy's  Estate,  182  Pa.  St. 
250.  68. 

26  Travis  V.  Morrison,  28  Ala.  494;  27  J^eeley  v.   Boyce,   128   Ind.   1. 


LAW    OF    WILLS.  '*^ 

reacliing  such  age,  or  in  case  the  contingency  in  general  should 
fail.  The  provision  for  a  gift  over  is  held  to  show  that  tes- 
tator intended  the  gift  to  A  to  vest  at  once,  subject  to  be 
divested  upon  his  death  before  reaching  the  age  specified,  or 
other  failure  of  the  specified  event.^^ 

§660.     Effect  of  power  of  sale. 

Where  the  enjoyment  of  property  devised  is  postponed  till 
after  the  determination  of  the  life  estate,  and  testator  further 
gives  to  executors  a  power  to  sell  this  land,  if  necessary  to 
pay  debts  of  testator  or  for  other  specified  purposes,  the  re- 
maindermen take  a  vested  interest  upon  the  death  of  testator, 
subject  to  be  divested  by  the  exercise  of  the  power  to  sell.-'^ 
So,  where  the  life  tenant  is  given  power  to  sell  the  real  prop- 
erty, if  necessary  for  his  support  and  maintenance,  the  re- 
mainders after  such  life  estate  are,  nevertheless,  vested  re- 
mainders, subject  to  be  defeated  by  the  exercise  of  power 
of  sale.^°  And  the  fact  that  the  amount  which  the  remainder 
men  will  take  is  uncertain  does  not  make  the  remainder  con- 
tingent.^^ 

§661.     Vested  remainders  opening  to  let  in  after-bom  remainder- 


men. 


Where  a  devise  in  remainder  is  made  to  a  class  who  may  be 
increased  after  the  death  of  testator  by  the  birth  of  others 
answering   the   description   before   the   estate   takes    effect   in 

28Boraston's    Case,    3    Coke,    51  so  Lehnard     v.     Specht,    180    111. 

(one  of  the  oldest  and   most  often  208;     Woodman    v.    Woodman,    89 

quoted  cases  on  this  subject)  ;   Col-  Me.    128. 

lier's   Will,   40  Mo.   287 ;    Roome  v.  si  Bancroft    v.    Fitch,    164    Mass. 

Phillips,,  24  N.  Y.  463;  Engle's  Es-  401;   Min  Young  v.  Min  Young,  47 

tate,  167  Pa.  St.  463.  0.   S.   501. 

29  Allen    V.    McFaiiand.    150    111.  Apparently     contra,     Watson     v. 

455;    Drake    v.    Paige,    127    N.    Y,  Conrad,  38  W.  Va.  536,  where  it  was 

562;    Bonnell   v.   Bonnell,   47   N.   J.  held    that    the    interest    of    the    re- 

Eq.   540;    Todd  v.   Wortman,   45  N.  maindorm'an    in    such    case    did    not 

J.  Eq.  723;  Barkman  v.  Hain,  5  O.  pass  by  a   sale  in   bankruptcy  pro- 

N.    P.    508;    Moores    v.    Moores,    12  ceedinga    of    his    interest    in    such 

Vroom,  440;   Romaine  v.  Hendrick-  property, 
son,  9  C.  E.  Green,  231. 


774  LAW    OF    WILLS. 

possession,  the  courts  will,  if  possible,  construe  this  as  a  vested 
remainder  in  those  of  the  class  answering  the  description  at 
the  death  of  testator.  Such  remainder,  however,  can  not  by 
the  terms  of  the  will  vest  absolutely  in  those  beneficiaries  to 
the  exclusion  of  those  born  thereafter,  and  before  the  time  of 
taking  possession  who  answer  to  the  description.  The  remain- 
der, therefore,  while  vesting  on  testator's  death,  will  open  to 
let  in  the  after-born,  and  to  that  extent  the  original  benfici- 
aries  will  be  divested  of  a  proportionate  interest.^"  Thus,  a 
gift  to  be  divided  upon  A's  death  among  the  children  that  he 
"may  hereafter  have"  opens  to  let  in  the  children  of  A  born 
after  testator's  death. ^^ 

S662.     Vested  defeasible  remainders. 

o 

Under  the  definition  of  vested  remainder  employed  by  the 
courts  in  many  jurisdictions,  a  vested  remainder  does  not  always 
take  effect  even  if  the  remainderman  is  in  existence  at  the  time 
of  the  determination  of  the  particular  estate.  Like  all  other  es- 
tates classified  upon  the  basis  of  duration  or  time  of  enjojTiient, 
a  vested  remainder  may  be  conditional.  We  have  already  seen 
that  any  condition  precedent  other  than  that  of  remainder- 
man's surviving  the  duration  of  the  particular  estate,  makes 
the  remainder  a  contingent  one ;  but  a  remainder  once  vested 
may  be  divested  upon  a  condition  subseqiient.^^ 

Thus  where  land  is  devised  to  one  for  life,  remainder  to  tes- 
tator's son  upon  coming  of  age,  or  if  he  should  come  of  age, 

32  Johnson    v.    Webber,    65    Conn.  ss  Cherbonnier  v.  Goodwin,  79  Md. 

501:  Field  v.  Peoples,  180  111.  376;  55. 

Green  v.  Hewitt,  97  111.  113;  Allen  3*  Richardson   v.   Penicks,   1   App. 

V.    Mayfield,    20    Ind.    293 ;    Middle-  D.  C.  261 ;  Gingrich  v.  Gingrich,  146 

ton  V.  Middleton,  —  Ky.  — ;   43  S.  Ind.    227;    Mullreed    v.    Clark,    110 

W.  677 ;   Hovey  v.  Nellis,  98  Mich.  Mich.  229 ;  Patterson  v.  Madden,  54 

374;   Budd  v.  Haines,  52  N.  J.  Eq.  N.   .T.   Eq.   714;    Brasher   v.   Marsh, 

488 ;  Haggerty  V.  Hockenberry,  52  N.  15   O.   S.    103;    Jeffers  v.   Lampson, 

J.  Eq.  354;  Tn  re  Seaman's,  147  N.  10   O.    S.    101;    Baker    v.     McLeod. 

Y.  69;  Losey  v.  Stanley,  147  N.  Y.  79  Wis.  534;  Marshall  v.  Marshall, 

560;   Gourley  v.  Woodberry,  42  Vt.  42  S.  C.  436. 
395 ;   Leeming  v.   Sherratt,  2  Hare, 
14. 


LAW    OF    WILLS.  775 

was  construed  as  passing  an  estate  vested  in  the  son  upon  tes- 
tator's death,  subject  to  be  defeated  bj  the  death  of  the  son 
before  arriving  at  the  age  named.^^ 

Remainders  are  often  granted  after  a  life  estate  with  a  pro- 
vision that  if  the  remainderman  shall  die  without  issue  the 
property  shall  pass  to  another.  As  is  hereafter  stated,  the 
clause  "dying  without  issue"  is,  wherever  possible,  construed 
to  mean  death  in  the  lifetime  of  the  testator.^** 

Where  "dying  without  issue"  is  held  to  mean  without  issue 
at  the  death  of  the  person  named  as  ancestor,  and  an  estate 
granted  to  one  for  life  with  a  remainder  to  another  named, 
but  if  the  remainderman  dies  without  issue,  then  to  others, 
the  remainder  man  takes  a  vested  remainder  defeasible  upon 
the  condition  subsequent  to  his  dying  without  issue  surviv- 
ing him.^^ 

Vested  defeasible  remainders  are  often  created  by  a 
gift  to  A  but  providing  that  if  he  should  die  before  a  cer- 
tain time  leaving  issue,  his  interest  shall  pass  to  such  issue.^^ 
Such  a  devise  is  not  defeated  by  the  death  of  the  devisee  with- 
out issue.^^ 

Since  estates  are  held  to  be  vested  rather  than  contingent,  a 
devise  to  testator's  ^vife  for  life,  remainder  to  testator's  son 
A,  on  condition  that  he  should  take  care  of  his  mother  and  pro- 
vide for  her  support  as  long  as  she  lived,  was  held  to  give  to 

S5  Richardson  v.   Penicks,    1   App.  Brasher    v.    Marsh,    15  O.  S.  103. 
D.    C.   261 ;    Dickison   v.    Ogden,   —  so  Bonnell    v.    Bonnell,    47    N.    J. 

Kv.  —  (1890)  ;  12  S.  W.  191.  Eq.  540. 

36  Hamilton  v.  Ritchie  (H.  L.  As  conditions  are  not  favored  in 
Scot),  (1894),  A.  C.  310;  Lee  v.  construction,  and  estates  are  held 
Mumford,  —  Ky.  — ;  44  S.  W.  91;  to  be  absolute  rather  than  condi- 
Small  V.  Marburg,  77  Md.  11;  tional.  (See  Sec.  674),  a  devise 
Tienken  v.  Tienken,  131  N.  Y.  391;  to  testator's  "children  then  living," 
Tompkins's  Estate,  154  N.  Y.  634;  i.  e.,  at  the  death  of  the  life  ten- 
Reams  V.  Span,  26  S.  C.  561.  See  ant  "or  their  heirs,"  is  held  to  be 
Sec.  676.  vested  and  not  defeasible  upon   the 

37Mullreed    v.    Clark,    110  Mich.  death  of   one   of  testator's   children 

229;  Patterson  v.  Madden,  54  N.  J.  after  testator,  the  phrase  "or  their 

Eq.   714;    Powers   v.   Bullwinkle,   33  heirs"  applying  to  the  heirs  of  such 

S.  C.  293;  Marshall  v.  Marshall,  42  children  of  testator  as  had  died  be- 

S.  C.  436.  fore    testator.      Linton    v.    Laycock, 

38  Shaw  V.  Eckley,  109  Mass.  119;  33  0.  S.  128. 
Putnam   v.    Story,    132   Mass.    205; 


776  LAW    OF    WILLS, 

A  a  vested  remainder  upon  testator's  death,  and  not  a  remain- 
der whose  vesting  was  deferred  to  his  mother's  death  and  was 
contingent  upon  his  support  of  her.  In  this  case  the  mother 
died  before  the  testator,  and  under  the  construction  placed 
upon  the  will  it  was  held  that  A  took  in  fee  upon  testator's 
death.'*'^  A  similar  view  was  taken  where  the  son  did  not  re- 
main with  the  widow  and  support  her  during  her  lifetime, 
because  he  died  before  she  did.^^ 

On  the  same  principle  it  was  held  that,  where  a  life  es- 
tate is  created  for  the  benefit  of  the  life  tenant  and  the  re- 
mainder over  is  given  to  remaindermen  upon  the  death  of  the 
life  tenant,  the  remainder  is  vested  in  the  remaindermen ; 
and  if  the  life  tenant  dies  before  the  testator,  the  remainder 
takes  effect  in  possession  upon  the  testator's  death.^^ 

§663.     When  contingent  interests  become  vested. 

Since  the  law  favors  the  early  vesting  of  interests,  a  remain- 
der which  is  contingent  at  testator's  death  is  to  be  so  con- 
strued as  to  be  converted  into  a  vested  remainder  at  the  ear- 
liest  moment   possible    consistent   with   testator's    intention.'*^ 

Thus  where  there  was  a  life  estate  to  testator's  wife,  sub- 
ject to  be  determined  by  her  remarriage,  with  remainder  over 
to  testator's  son,  upon  the  death  or  remarriage  of  the  widow 
with  a  remainder  to  the  daughter  of  testator,  contingent  upon 
the  death  of  the  son  before  the  wife,  it  was  held  that  upon  the 
remarriage  of  the  widow  the  estate  vested  in  the  son,  and  was 
not  divested  by  his  death  before  that  of  the  widow."*^ 

So  where  there  was  a  devise  to  A  in  case  he  survived  the  testa- 
trix and  attained  to  the  age  of  twenty-one,  though  modified  by 

40  Gingrich  v.  Gingrich,   146  Ind.  ton  v.  Laycock,  33  O.  S.  128 ;   Scott 

227.  V.    Best,   —   Ky.   —    (1894);    25    S. 

4iMcCall  V.  McCall,   161   Pa.   St.  W.  745;  Dorr  v.  Johnson,  170  Mass. 

412.  540;    Boyd   v.    Sachs.    78    Md.   491; 

isHoaly  v.  Healy,   70   Conn.   467.  Herriot    v.    Prime,    155    N.    Y.    5;' 

43  Poor's    Lessee    v.    Considine,    6  Moore's    Estate,    152     N.     Y.     602; 

Wall.    4.58;    Cropley   v.    Cooper,    19  Hinkson  v.  Lees.  181  Pa.  St.  225. 
Wall.   167;   McArthur  v.   Scott,   113  44  Boyd    v.    Sachs,    78    Md.    491, 

U.  S.  340;  Gindrat  v.  Western  Ry.  citing    Snider   v.    Nesbitt,     77     Md. 

96  Ala.  162;  19  L.  R.  A.  8.39:  Young  576. 
V.    Harkleroad,    166    III.    318:    Lin- 


1,AW    OF    WILLS.  777 

cod'cil,  providinji'  that  if  he  died  leaving  no  lawful  issue  at 
the  time  of  his  death  to  be  entitled  to  the  trust  property, 
the  property  should  pass  to  others,  it  Avas  held  that  upon  A's 
surviving  the  testatrix,  and  attaining  the  age  of  twenty-one 
he  took  a  vested  interest  in  the  fund  although  he  subsequently 
died  Avithout   lawful   issue. '^^ 

Where  a  will  provides  for  subsequent  division  of  prop- 
erty in  such  a  way  as  to  prevent  the  vesting  of  the  estate  be- 
fore the  division,  it  is  held  that  the  interests  vested  absolutely 
upon  the  division.'**^ 

So  where  a  will  provided  that  a  house  should  be  divided 
among  testator's  children  at  the  death  of  testator's  wife,  but 
that  since  division  was  impossible,  it  should  be  appraised  and 
taken  by  the  devisee  or  devisees  who  should  take  the  farm  at- 
tached to  it,  securing  the  others  for  their  shares  in  money 
by  bond  and  mortgage,  it  is  held  that  the  remainder  in  this 
house  vested  absolutely  in  the  person  who  took  the  farm,  im- 
mediately upon  his  taking  such  farm.'*''' 

Where  the  terms  of  the  will  vesting  is  postponed  until  the 
beneficiary  shall  reach  a  certain  age,  it  is  held  that,  upon  his 
reaching  that  age,  the  estate  vests,  though  the  enjoyment  there- 
of may  be  postponed  until  the  determination  of  the  life  es- 
tate."*^ So  a  devise  to  testator's  two  sons,  to  be  equally  divided 
between  them  when  the  younger  son  came  of  age,  remainder  to 
the  widow  for  life,  in  case  both  of  the  sons  died  without  heirs, 
and  on  her  death  over  to  others,  was  held  to  vest  absolutely  in 
one  son  upon  the  death  of  the  other  after  majority  leaving 
issue.^^  So  where  a  contingent  remainder  is  devised  to  named 
persons  upon  the  death  of  the  first  taker,  without  issue,  the  es- 
tate vests  at  once  upon  such  contingency.^*^  So  in  a  devise  to 
A,  but  if  she  die  without  issue  to  B  for  life,  remainder  to  the 


45  Bailey  v.  Hawkins,  18  R.  I.  48  Keepers  v.  Fidelity,  Title  & 
573  (1894),  affirming  on  rehearing  Deposit  Co.,  56  N.  J.  Law,  302: 
18  R.  I.,  27  Atl.  512.  Dimmick   v.   Patterson,    142   N.   Y. 

46  Wilson  V.   Bryan,   90   Ky.   482;  322. 

Welder    v.    McComb,    10    Tex.    Cir.  49  Seott  v.  Best,  Ky,    (1894);   25 

App.  85.  S.  W.  745. 

47  Dean  v.  Winton,  150  Pa.  St.  so  Dorr  v.  .Johnson,  170  Mass. 
227.                                                        ■  540;  Moore's  Estate,  152  N.  Y.  602. 


778  LAW     OF     WILLS. 

children  of  C,  C's  children  take  a  vested  interest  on  the  death 
of  A.^^  So  where  a  will  devised  property  to  testator's  widow 
for  life,  with  remainder  to  his  brothers  and  sisters,  and,  in  a 
codicil,  he  provided  that,  in  case  of  a  birth  of  child  to  testator, 
the  will  should  remain  in  force  until  the  child  should  reach 
the  age  of  twenty-one,  when  the  wife  and  the  child  should  di- 
vide the  property  between  them ;  and  further  providing  that, 
if  the  wife  should  die  or  marry  before  the  child  should  reach 
the  age  of  twenty-one,  and  that,  if  both  wife  and  child  died 
before  the  child  reached  the  age  of  twenty-one,  the  property 
should  go  to  the  brothers  and  sisters,  it  was  held  that,  upon  the 
death  of  the  wife  before  the  child  reached  the  age  of  twenty- 
one,  the  remainder  vested  in  such  child,  subject  to  be  divested 
by  the  death  of  the  child  before  reaching  the  age  of  twenty- 
one.^^ 

Where  property  was  devised  to  one  if  he  should  "have  an 
heir  of  his  body,"  and  if  he  died  leaving  no  heir,  to  others,  it  is 
held  that  the  estate  vested  absolutely  and  undefeasably,  upon 
the  birth  of  a  child,  to  such  person,  although  the  child  might 
die  before  such  person.^^ 

A  provision  that,  after  the  death  of  testator's  wife,  a  planta- 
tion should  be  "equally  divided  among  my  children  that  may 
be.  alive  at  that  time",  and  further  providing  that,  if  the  chil- 
dren could  not  stay  on  the  place  together,  their  guardians 
should  "receive  and  pay  out  to  them  what  may  be  coming  to 
them  of  my  estate",  was  held  to  give  vested  remainders  to  the 
children  upon  their  removal  from  the  plantation.  At  any 
event,  upon  the  death  of  all  the  children  except  one,  immarried 
and  childless,  a  deed  from  the  survivor  and  the  widow  will 
pass  the  absolute  estate.^^ 

Where  property  is  devised  to  one  for  life,  remainder  over  to 
another,  providing  that  other  survives  the  life  tenant,  it  is  said 
in  some  jurisdictions  that  this  interest  of  the  remainder-man 


51  Nathan  v.  Hendricks,  147  N.  Y.  53  Moore  v.  Feig,   17  0.  C.  C.  27. 
348.  54Xioholson   v.   Cousar,   50   S.   C. 

52  Herriot    v.    Prime,    155    N.    Y.  206 ;  27  S.  E.  628. 
5. 


779 

LAW    OF    WILLS.  •  * " 

is  a  contingent  remainder.^^  At  any  event,  such  interest  is 
one  that  can  not  be  fairly  appraised  and  sold,  and  the  courts 
are,  accordingly,  unwilling  to  allow  it  to  be  subject  to  attach- 
ment.^*' 

§664.     Contingent  remainders. 

A  contingent  remainder  exists  where,  under  the  terms  of  the 
gift,  there  is  either  no  definite  or  ascertained  person  in  exist- 
ence who  will  take,  if  the  particular  estate  were  to  determine 
at  once,  or  where,  although  the  person  who  is  to  take  is  defi- 
nite and  ascertained,  some  contingency  or  event  other  than  that 
of  the  determination  of  the  particular  estate  must  occur  before 
such  remainder-man  can  take.^'^ 

From  this  definition,  it  is  evident  that  there  are  two  kinds 
of  contingencies:  contingencies  of  the  event  and  contingencies 
of  the  person.  A  third  class  might  undoubtedly  be  suggested 
in  cases  where  there  is  a  contingency  of  both  the  event  and  per- 
son, thoudi  this  latter  class  has  never  been  recognized  by  the 
courts  as^distinct  from  the  other  two.  A  contingency  of  the 
event  exists  where  the  person  who  is  to  take  upon  the  determi- 
nation of  the  life  estate  is  in  existence,  and  is  sufficiently  desig- 
nated; but  some  event  other  than  the  determination  of  the  par- 
ticular estate  must  occur  before  the  remainder-man  can  take  at 
such  detemiination.^^ 

Any  lawful  event  which  testator  may  select  may  be  the  sub- 
ject of  the  contingency.  A  common  contingency  is  where  the 
remainder  is  to  pass  to  the  remainder-man,  provided  he  sur- 
vives some  designated  person.  In  such  cnse,  at  least  as  long  as 
the  desi'gnated  person  is  alive,  the  remainder-man  has  only  a 
contingent  remainder,^^    or  the   contingency  may  be   the   re- 

55Watsonv.  Adams,  103  Ga.  733;  80;    Phayer    v.    Kennedy,    169    IH. 

Madison    v.    Larmon,    170    111.    65;  360;     Lapps    v.    Lee,    —  J^^- 

Brooks  V.  Kipp,  54  N.  J.  Eq.  462;  (1892)  ;    17   S.   W-   146 ;   Hopper  v. 

Rip.^an  V.  Lamkin,  120  N.  C.  44.  Harrod,  -  Ky.  -  (1894)  ;  24  S.  W. 

56  Smith  V.  Gilbert,  71  Conn.  149;  870. 

xxT  .  Ai  ifiQ  no    T^"?  59  Turner    v.    Balfovir,    62    Lonn. 

Watson  V.  Adams,  103  Ga.   i  ■'i.i.  j.uiuci 

5- SLaw  V    Ecklev,  169  Mass.  119  89;      Phayer      v.      Kennedy,      169 

(remainder    to    A    if   C    died   before  111.    360:    ^epps    v.    Lee,    --   Ky_-- 

life  tenant  B  held  contingent).     See  (1892),   17    S.   W.   1^6;   High  ^  E- 

Sec.  656.  tate,   136   Pa.   St.   222,   236;   Gorm- 

58  Turner    v.    Balfour,    62    Conn.  ley's  Estate,  154  Pa.  St.  378. 


780  LAW    OF    WILLS. 

marriage  of  a  specified  person.^^  So  where  testator  devised 
land  to  his  wife,  and  provided  that  if  a  certain  designated 
person  married  and  had  issue,  and,  if  the  wife  thought  it  ad- 
visable, she  might  convey  the  land  to  such  issue  or  children, 
and  if  she  did  not  so  convey,  the  land  should  go  to  a  desig- 
nated township,  the  interest  of  the  children  of  the  desig- 
nated person  was  held  to  depend  entirely  upon  the  fact  of  the 
conveyance.  So  when  the  wife  conveyed  to  one  child  only,  the 
other  children  were  held  to  acquire  no  interest  whatever  in 
such  land.^^  A  devise  to  A,  but  if  he  should  die  without  issue 
to  B,  gives  B  a  contingent  remainder,  dependent  on  the  death 
of  A  without  issue.^-  So  a  devise  to  be  divided  by  trustees 
among  certain  persons  at  their  discretion  does  not,  until  such 
division,  give  any  interest  to  such  beneficiary  that  f'an  be 
bound  by  a  lien.'^^ 

Since  testator  does  not  usually  understand  the  difference 
between  vested  and  contingent  interests,  especial  care  m-ust  be 
taken  in  determining  the  nature  of  the  interest  given  when  it 
is  expressly  made  to  dependent  upon  the  happening  of  speci- 
fied events.  These  interests  are,  under  the  definition,  ordi- 
narily contingent;  but  analysis  of  the  will  may  disclose  that 
the  contingencies,  when  put  together,  merely  amount  to  a  de- 
scription of  the  particular  estate.  A  vested  remainder 
is  necessarily  dependent  upon  the  determination  of  the  par- 
ticular estate.  It  therefore  follows  that  no  extension  or  repe- 
tition of  the  description  of  the  particular  estate  will  make  the 
remainder  dependent  thereon  contingent  instead  of  vested.^^ 

§665.     Contingencies  of  the  person. 

A  remainder  may  also  be  contingent  because  of  the  contin- 
gency of  the  person.     This  estate  exists  where,  by  the  terms  of 

eoCarr   v.    Bredenberg,  50    S.    C.       128:    Nelson   v.   Faissell,   135   N.   Y. 

471.                                      '^  137;    Sellers   v.   Reed,    88    Va.    377. 

61  Crist  V.  Schank,  146  Ind.  277 ;  But  a  line  of  eases  consider  that 
45  N.  E.   190.  a    contingent    remainder    is    created 

62  St.  John  V.  Dann,  66  Conn.  where  it  is  expressly  provided  by 
401  _  will   that  the  remainder  man  must 

f'SHandy's  Estate,  182  Pa.  St.  survive  the  life-tenant.  See  Sees. 
68.  656  and  663. 

64  Woodman  v.  Woodman,  89  Me. 


LAW    OF    WILLS.  781 

the  gift,  the  beneficiary  can  not  be  ascertained  until  the  hap- 
pening of  some  future  event.  '  Thus,  where  a  devise  is  made  to 
a  class  in  such  terms  that  the  class  can  not  be  ascertained  at 
the  death  of  the  testator,  but  must  be  ascertained  at  some  fu- 
ture time,  it  is  held  in  many  states  that,  until  such  class  is 
definitely  ascertained,  the  interest  of  the  members  of  such  class 
corresponding  to  such  description  is  a  mere  contingency;^"'^ 
hence  the  bankruptcy  of  one,  who  may  take  a  contingent  inter- 
est at  the  time  for  fixing  the  class  of  beneficiaries,  passes  no 
title  to  assigiiee  or  trustee  in  bankruptcy.*'^  And  on  the  death 
of  such  person  no  interest  passes  to  his  issue  unless  specific- 
ally so  provided  by  the  terms  of  the  will,  and,  in  this  case, 
tlie  issue  take,  not  by  descent,  but  by  purchase  f  nor  has  the 
surviving  wife  or  husband  of  such  person  any  interest  in  the 
property  in  which  decedent  had  such  contingent  remainder. ^^ 

§666.     Contingent  legacies. 

As  in  devises,  contingent  legacies  may  be  of  two  kinds : 
legacies  contingent  on  account  of  some  event  and  legacies  con- 
tingent because  of  the  uncertainty  of  the  beneficiaries.  A 
legacy  contingent  on  account  of  the  event  is  created  by  will 
which  provides  that  the  legatee  shall  take  at  a  future  time' 
only  in  case  some  other  and  further  event  happens.^^  And  a 
beneficiary  who  has  no  vested  interest  is  still  entitled  to  pro- 
tection against  the  acts  of  the  widow  or  executor  in  so  dealing 
with  the  estate,  as  to  make  it  impossible  to  pay  his  legacy 
should  the  contingency  happen.'^'^ 

65  Buchanan    v.    Denig,    84    Fed.  se  Buchanan    v.    Denig,    84    Fed. 

Rep.   863;   Gindrat  v.   Western  Ry.  864. 

96  Ala.  162;   19  L.  R.  A.  839;  Bates  67  Fitzhugh  v.  Townsend,  59  Mich. 

V.  Gillett,  132  111.  287;  Madison  v.  427;    Whitesides   v.   Cooper,   115   N. 

Larmon,     170     111.     6.5;      Loeb     v.  C.  570. 

Struck    (Ky.),  42   S.  W.  401;    Ried  es-Wilson    v.    Denig,    166    Pa.    St. 

V.  Walbach,  75  Md.  205;   Fitzhugh  29. 

V.  Townsend,  59  Mich.  427 ;   White-  69  Duggan  v.  Duggan,   17  Can.  S. 

sides  V.  Cooper,  115  N.  C.  570;  Wil-  C.   343;    Lapham   v.   Martin,    33   O. 

son  V.  Denig,  166  Pa.  St.  29;  Nich-  S.  99;  Rebman  v.  Dierdorf,  186  Pa. 

Olson   V.   Cousar,   50   S.   C.   206;    27  St.    401. 

S.    W.    628;    Forest   v.    Porch,    100  to  Duggan  v.  Duggan,  17  Can.  S. 

Tenn.  391.  C.  343;  see  Sec.  598. 


782  LAW     OF     WILLS. 

A  legacy  may  also  be  contingent  on  account  of  the  uncer- 
tainty of  the  beneficiar}'.  This  usually  occurs  when  the  bene- 
ficiaries are  not  named  but  are  described,  as  for  example,  by 
reference  to  the  class  to  which  they  belong  in  such  terms  that 
they  can  not  be  ascertained  accurately  until  the  happening  of 
some  future  event.  Such  a  legacy  is  contingent  until  the  hap- 
pening of  the  event  by  which  the  legatees  can  be  definitely  as- 
certained.'^^ Thus,  a  legacy  to  such  of  x\'s  children  as  shall  be 
alive  at  the  death  of  A,  is  contingent  until  A's  death.'^^ 

§667.     Vested   and   contingent  legacies. — General  rule   of  con- 
struction. 

The  law  in  the  case  of  legacies,  as  in  the  case  of  devises,  pre- 
fers, wherever  testator's  language  is  ambiguous,  or  obscure,  or 
doubtful,  a  construction  which  will  make  a  legacy  vested 
rather  than  contingent,  or,  if  contingent,  will  make  it  vested 
as  soon  as  possible  ;'^'^  nor  will  the  fact  that  the  legatee  may 
die  before  the  time  of  the  pa\Tnent  of  the  legacy  conclusively 
show  that  it  is  a  contingent  and  not  a  vested  interest.'^^  So  a 
legacy  payable  "within  one  year  after  the  death  of  my  wife, 
if  she  survive  me  "  is  held  to  be  vested,  and  not  contingent, 
the  condition  referring  solely  to  the  time  of  payment. '^^ 

Within  the  limits  of  the  rule  against  perpetuities,  however, 
testator  has  absolute  right  to  dispose  of  his  property  as  he 
pleases,  as  far  as  the  time  of  the  vesting  is  concerned ;  and  he 
may,  therefore,  create  either  vested  or  contingent  legacies  at 
his  pleasure;  and,  when  he  specifically  provides  in  his  will 

71  Zn  re  Marvin  (1891),  3  Ch.  Hopkins  v.  Keazer,  89  Me.  347; 
197;  McCartney  v.  Osburn,  118  Jones  v.  Jones,  46  N.  J.  Eq.  554; 
111.  403;  Wilhelm  v.  Calder,  102  Rhode  Island  Hospital  Trust  Co. 
lo.  342;  Hopkins  v.  Keazer,  89  Me.  v.  Harris,  20  R.  I.  408. 

347;    Hale    v.    Hobson,    167    Mass.  73  Bethea  v.  Bethea,  116  Ala.  265 ; 

397;    Hall  v.   Wiggin,   67  N.   H.   89  Hills    v.    Barnard,    152    Mass.    67, 

(1894)  :  29  Atl.  671  :  Jones  v.  .Jones,  9  L.  R.  A.  211. 

46  N.  J.  Eq.   554,  affirming  Button  "*  Spencer    v.    Greene.    17    R.    I. 

V.  Pugh,  45  N.  J.  426;  Rhode  Island  727:  Lovass  v.  Olson,  92  Wis.  616; 

Trust    Company    v.    Harris,    20    R.  67  X.  W.  605. 

I.  408.  7-,  Lovass  v.  Olson,  92  Wis.  616; 

72  Wilhelm  v.  Calder    102  lo.  342:  G7  N.  W.  605. 


LAW     OF     WILLS.  '^ 

at  what  moment  the  legacies  shall  vest,  the  courts  will  give  full 
effect  and  force  to  his  wishes.  Cases  of  this  kind  are,  how- 
ever, rarely  presented  to  the  courts  for  construction.  The 
wills  in  which  testator  did  not  provide  specifically  as  to  the 
time  of  the  vesting  of  the  legacies  are  the  ones  commonly  pre- 
sented for  judicial  decision.  The  rules  most  frequently  in- 
voked are  those  for  determining  testator's  probable  intention. 
In  such  cases,  while,  as  usual,  each  will  is  to  be  construed  by 
itself,  and  depends  for  its  meaning  largely  upon  its  own  con- 
text and  subject  matter,  some  prima  facie  rules  have  become 
well  settled.  Where  the  legacy  is  to  be  paid  as  soon  as  testa- 
tor's estate  is  settled,  such  legacy  is  vested  at  once  upon  testa- 
tor's death.  This  proposition  is  so  well  settled  that  but  few 
cases  arise  involving  it. 

§668.     Effect  of  postponing  time  of  payment  to  create  intermedi- 
ate interest. 

^Yhere  testator  postpones  the  papnent  of  the  legacy  simply 
for  the  purpose  of  creating  an  intermediate  interest  in  some 
other  person,  upon  the  determination  of  which  interest  the 
legacy  is  to  be  paid,  such  legacies  are  prima  facie  treated  as 
vested    upon    testator's    death,   and    not    contingent.^^      And 

76D^^Ter   v.   Mapother,   2G   N.    S.  248 ;  Collier  v.  Grinisey,  36  O.  S.  22; 

294;  Walker  v.Atmore,  50  Fed.  644;  Bartholomew's   Estate,   155   Pa.    St. 

Bethea    v.    Bethea,    116    Ala.    265;  .314 ;  Thomman's  Estate,  161  Pa.  St. 

Scofield    V.    Clcott,    120    111.    362;  444;    Eckert's   Estate,    157    Pa.    St. 

Everett  v.  Mount,  22  Ga.  323:  Owen  585;    Wengerd's    App.    143    Pa.    bt. 

V.  Eaton,  56  Mo.  App.  563;  Cook  v.  615;   13  L.  K.  A.  360;   Bitters  Es- 

Hayward,  172  Mass.  195;  Marsh  v.  tate,    190    Pa.    St.    102;    Rowlands 

HoTt,  161  Mass.  459;  Hall  v.  Wig-  Estate,    141    Pa.    St.    553;    Mull   v. 

mn    67  N    H   89  •  29  Atl.  671:  Ben-  Mull,   81   Pa.   St.   393;    Littles   Ap- 

ton  V.Benton,  66  N.H.  169  (1891);  peal,    117    Pa.    St.    14;    MeClure's 

20  Atl    365;  Budd  v.  Haines,  52  N.  Appeal,  72  Pa.  St.  414;  Patterson  v. 

J    Eq    489:    Conant  v.   Bassett,   52  Hawthorne,   12   S.  &  R.   112;    Shej- 

N    .T    Eq    I''-  Cook  v.  McDowell,  52  man  v.  Baker,  20  R.  I.  446;   40  L. 

N    J  Eq    351;   Adams  v.  Woolman,  R.  A.  717;  Newport  Bank  v.  Hayes_. 

50  N   J   F.q.  516;  Kimble  v.  White,  18  R.  I.  464;   Spencer  v.  Greene,  1/ 

50  N    J    Eq    28:    Crane  v.   Bolles,  R.    L    727:    .Tones    v.    Knappen,    63 

49   N     J     Eq.    373:    Booraem's   Es-  Vt.  391;  14  L.  R.  A.  292:  Chapman 

tate  '5=^  N  J  Eq.  759;  Bowditch  v.  Chapman.  90  Va.  409:  Stanley  v. 
V  Avrault;  138  N.  Y.  222;  Wey-  Stanley,  92  Va  534,  1896;  24  S.  E. 
mouth  V.  Irwin,  7  0.  D.  91 ;  5  O.  N.  P.       229  :  Baker  v.  McLeod,  >  9  Wis.  534  , 


784 


LAW     OF     WILLS. 


where  such  legacy  is  given  absolutely,  the  payment  being  post- 
poned to  let  in  a  life  estate,  the  interest  of  the  legatee,  if  he 
dies  before  the  period  of  payment,  passes  to  his  legatees  or 
next  of  kin.  Such  a  legacy  may  be,  however,  granted  upon  a 
condition  subsequent  to  be  divested  if  the  legatee  dies  without 
issue.  Although  a  vested  legacy,  it  is,  of  course,  divested  by 
such  a  contingency.''^^  Such  a  legacy  may  be  further  so  given 
that,  although  it  vests  in  the  legatees  at  testator's  death,  or  as 
they  afterwards  come  into  being,  it  will  open  to  let  in  after- 
born  legatees.  Thus,  where  a  bequest  is  given  to  one  for  life, 
or  until  the  youngest  child  of  such  person  came  of  age,  and 
then  to  sTieh  children,  it  was  held  that  the  interest  in  this  leg- 
acy vested  in  the  children  as  they  were  born,  subject  to  open 
and  let  in  after-born  children.'''^ 

§669.     Effect  of  postponing'  time  of   payment    where    no   inter- 
mediate interest  exists. 

Where  a  will  bequeaths  outright  a  certain  sum  of  money  to 
a  legatee,  and  further  provides  that  the  i^ayment  of  this 
money  shall  be  postponed  until  a  future  time,  it  is  held  that 
the  legatee  ^-ests  at  once  upon  the  death  of  the  testator,  al- 
though the  period  of  enjoyment  is  to  he  postponed  until  the 
time  indicated,  generally  the  arrival  of  the  beneficiary  at  a 
certain  age.'''^     "If  testator  gives  a  legacy  to  A.  B.,  at  the  end 

TiHickling  v.  Fair    (1807),  A.  C.  265;  Nixon  v.  Robbins,  24  Ala.  663; 

15;    G8  L.  J.  P.  C.  X.  S.   12:   Web-  Harrison   v.   Moore,    64   Conn.    344; 

ater  v.  Webster,  93  Ky.  632.  Ingrahara    v.     Ingraham,     169     III. 

7s  Male  V.  Williams,  48  X.  J.  Eq.  432,    472 ;    Eldridge   v.    Eldridge,    9 

43;    Campbell  v.   Stokes,   142  N.  Y.  Cush.   516;    Wardwell   v.   Hale,    161 

23;    Bradley's    Estate,    166    Pa.    St.  Mass.  396;  Furness  v.  Fox,  1  Cush. 

300.  (Mass.),    134;    48    Am.    Dec.    593 

79  Bruce  V.  Charlton,  13  Sim.  68;  Claflin    v.    Claflin,    149    Mass.    19 

Marsh  v.  Wheeler,  2  Edw.  Ch.  162;  Smith   v.   Parsons,   164   N.   Y.    116 

Walkerly's    Estate,    108    Cal.    627;  Goebel    v.    Wolfe,    113    N.    Y.    405 

Hibler    v.    Hibler,    104    Mich.    274;  Nelson  v.  Blue,  63  N.  C.  659;  Reed 

Srnith   v.   Jackson,    115   Mich.    192:  v.    Buckley,    5    Wats.    &    S.    517; 

McCarty  v.  Fish,  87  Mich.  48;  Rood  McReynolds  v.   Graham    (Tenn.   Ch. 

V.   Hovey,   50  Mich.   395:   Bishop  v.  App.),    43    S.    W.    138;    Lovass    v. 

McClelland,  44  ¥.  J.  Eq.  4.50;   1  L.  Olson,  92  Wis.  616;   67  N.  W.  605. 

R.    A.    551 :    Atmore   v.   Walker,   46  So    where    one    bequeathes    to    his 

Fed.  429;  Bethea  v.  Bethea,  116  Ala.  orrandchildren  who  were  over  twen- 


LAW    OF    WILLS.  785 

of  ten  years  after  liis  death  the  legacy  is  contingent ;  but  if  he 
gives  it  .to  A.  B.  to  be  paid  to  him  at  the  end  of  ten  years,  it  is 
vested."^^  Thus,  Avhere  a  will  gave  a  legacy  to  testator's  son, 
payable  when  he  was  twenty-one,  and  provided:  ''I  also  give 
him  the  sum  of  $:2 0,000  to  be  paid  to  him  when  he  shall  attain 
the  age  of  twenty-five  years,  together  with  the  further  sum  of 
$20,000  to  be  paid  to  him  when  he  shall  attain  the  age  of 
thirty  years,"  it  Avas  held  that  these  legacies  were  vested.^' 
So,  where  a  legatee  is  given,  in  absolute  terms,  a  provision  that 
the  payment  shall  not  be  made  until  the  legatee  reforms,  and 
if  he  shall  not  reform  within  five  years  of  testator's  death 
his  share  shall  be  held  in  trust  for  his  children,  shall  not  pre- 
vent the  vesting  of  the  legacy  so  that  where  he  dies  mthin 
five  years  it  descends  as  intestate  property  to  his  widow  and 
children ;  ^^  nor  is  a  legacy  prevented  from  vesting  by  the  fact 
that  trustees  were  appointed  to  pay  the  income  to  legatee,  and 
not  pay  him  the  principal  until  they  think  it  proper.*^ 

Where  a  will  gives  a  legacy  in  such  terms  as  would  other- 
wise pass  a  vested  interest,  the  fact  that  a  power  of  disposing 
of  the  property  in  some  other  manner,  generally  for  the  support 
of  testator's  widow,  is  given,  does  not  render  the  legacy  contin- 
gent, although,  of  course,  it  may  be  defeated  by  the  exercise  of 
the  power.^'* 

A  somewhat  different  case,  however,  was  presented  where 
the  testator's  son  was  emi^owered  to  "use  the  principal  for  his 

ty-one    years,    a    certain    sum    out-  quoted  in  Hibler  v.  Hibler,  104  Mich, 

right,  and  bequeaths  a  like  sum  to  274. 

those  under  twenty-one,  payable  si  Wardwell  v.  Hale,  161  Mass. 
■when  they  arrive  at  tlie  age  of  twen-  396.  ( So  as  the  son  died  at  the  age 
ty-one,  and  appointed  a  trustee  to  of  26  his  administrator  could  re- 
manage  the  sum  in  tlie  meantime,  it  cover  the  legacy  payable  when  he 
was  held  that  the  legacy  vested  in  was  [or  would  have  been]  30. 
those  under  age  at  the  death  of  tes-  ^-  Burnham  v.  Burnham,  79  Wis. 
tator.     "The  appointment  of  a  trus-  557. 

tee  in  connection  with  the  language  §3  Lippincott    v.    Stottenburg,    47 

of  the  defendant  clearly  shows  that  N.  J.  Eq.  21. 

the  legatees  are  to  be  paid  as  other  S4  ]Teilnian   v.   Heilman,   129   Ind. 

legatees  upon  the  settlement  of  the  59 :  INIcCarty  v.  Fish,  87  Mich.  48 ; 

estate."  Nelson  v.  Pomeroy,  64  Conn.  In  re  Brown,  154  K.  Y.  313;  Chafee 

257.  V.  Maker,  17  R.  I.  739. 
80  Bruce  v.  Charlton,  13  Sim.  68, 


786  LAW    OF     WILLS. 

children,  or  any  of  them,  equally  or  unequally."  By  the  exer- 
cise of  the  power  of  appointment,  the  parent  could  substantially 
defeat  the  interest  of  any  of  his  children.  The  interests  of 
his  children  were  accordingly  held  to  be  contingent  during  the 
lifetime  of  their  fnther.^^  It  seems  well  settled  that  a  legacy 
to  the  "heirs"  of  testator  vests  the  interest  in  the  legacy  at  the 
death  of  testator.^^  And  a  legacy  given  absolutely  is  vested, 
although  not  payabie  till  the  death  of  the  life  tenant.^ ^ 

WTiere  a  legacy  is  not  given  in  specific  language,  but  is 
only  to  be  implied  from  the  direction  to  pay  the  legacy  to  the 
legatees  at  some  time  subsequent  to  the  death  of  testator,  it 
is  a  prima  facie  rule  of  construction  that  such  a  legacy  does 
not  vest  at  the  death  of  testator,  but  is  contingent  until  the 
time  fixed  for  its  pa\Tnent.®*  Thus,  a  direction  to  pay  a  cer- 
tain sum  to  a  named  legatee  at  the  end. of  two  years,  if  in  the 
judgment  of  the  executor  he  has  then  reformed,  does  not 
create  a  vested  interest  in  such  legatee  at  testator's  death.^*^ 
This  presumption  may  be,  of  course,  strengthened  by  the  con- 
text of  the  will  showing  that  testator  does  not  regard  the  leg- 
acy as  vested  until  the  time  of  payment.^^ 

This  rule,  however,  while  a  prhna  facie  rule  of  construction, 
is  subordinate  t-o  the  primary  rule  that  the  intention  of  testator 
must  be  collected  from  the  whole  will,  and  any  form  of  lan- 

85  Lewis  V.  Citizens'  National  tate,  155  Pa.  St.  314;  Pleasanton's 
Bank,    95    Ky.    7^9.  Appeal,  99  Pa.  St.  3G3. 

86  Muhlenburg's  App.  103  Pa.  St.  89  Markham  v.  Huflford  (Mich.) 
587.  (1900),  82  N.  W.  222. 

87  Carper  v.  Crowd,  149  III.  465;  so  "it  is,  therefore,  apparent  that 
Kelly  V.  Gonce,  49  111.  App.  82.  the  concluding  clause  of  the  will  of 

88  Walker  V.  Mower,  16  Beav.  365;  the    father    providing    that    no    de- 


Gardiner  V.  Slater,  25  Beav.  509 
In  re  Soules,  30  Ont.  Rep.  140 
Scofield  V.  Oleott,  120  111.  363 
Powers  V.  Egelhoflf,  56  111.  App.  606 
Owen  V.   Eaton,   56   Mo.   App.   563 


scendants  of  his  survive  his  wife, 
the  property  shall  belong  and  be 
delivered  over  by  the  executors  to 
the  persons  named  by  him,  of  ne- 
cessitv   shows   that   he   did   not   in- 


Snow  v.   Snow,  49  Me.   159;   Eager  tend  that  his  children  should  have 

V.  Whitney,  163  Mass.  463;  Garland  a    vested    interest    during    the    life- 

V.  Smiley,  51  N.  J.  Eq.  198  ;  Paget  time  of  his  wife  so  as  to  make  it 

V.   Mekher,    156   N.   Y.    399;    Green  pass  under  their  wills  or  go  to  their 

V.    Green,    86   N.    Car.    546 ;    Union  next  of  kin."    Paget  v.  Melcher,  156 

Savings  and  Trust  Co.  v.  Darr,   10  N.  Y.  399. 
Ohio  C.  D.  554;   Bartholomew's  Es- 


I-AW    OF    WILLS.  787 

guage  in  the  will  which  clearly  shows  that  testator  intends 
the  legacies  to  vest  before  the  time  of  pavnient  must  be  given 
full  effect  by  the  courts.^  ^ 

"If  there  be  no  other  gift  than  in  the  direction  to  pay  or 
distribute  in  futuro,  yet  if  such  gift  or  distribution  happens 
to  be  postponed  for  the  convenience  of  the  fund  or  property, 
or  where  the  gift  is  only  postponed  to  let  in  some  other  in- 
terest, the  vesting  will  not  be  deferred  till  the  period  in  ques- 
tion." * 

§670.     When  contingent  legacies  become  vested. 

Since  the  law  favors  the  vesting  of  legacies  as  soon  as  pos- 
sible, a  contingent  legacy  is  held  to  vest  in  the  beneficiary  the 
instant  that  the  contingency  happens;  even  though  the  pay- 
ment of  the  legacy  may  be  postponed  until  some  future  event 
occurring  thereafter.^^  Thus,  a  provision  that  testator's  daugh- 
ter, who  had  received  a  specified  gift  by  the  will,  should  re- 
ceive an  additional  gift  if  she  became  insane,  was  held  to  give 
her  an  interest  which  vested  at  tlie  moment  of  her  becoming 
insane,  and,  accordingly,  descended  to  her  legal  representatives 
in  event  of  her  death  before  receiving  it.''^ 

Where  a  legacy  was  given  to  one  for  life,  and  "from  and 
after  her  death"  to  such  of  life  tenant's  children  as  were  living 
at  the  period,  not  exceeding  nine  months  after  the  death  of  the 
testator,  it  was  held  that  at  the  expiration  of  such  nine  months 
the  legacies  vested  and  were  not  subject  to  be  divested  by  the 
death  of  one  of  these  children  during  the  lifetime  of  the  life 
tenant.^^  So,  in  a  gift  of  the  income  of  a  fund,  Avith  a 
right  to  use  the  principal  on  demand,  the  right  to  the  principal 
vests  on  demand.^^  Hence,  where  the  legatee  demands  the 
principal  before  her  death,  but  it  is  not  paid  to  her,  it  should 
be  paid  to  her  estate.^® 

91  In   re   Brown,    154   N.   Y.    313.  si  Hudgins  v.  Leggett,  84  Tex.  207. 

*  McClure's    Appeal,    72    Pa.    St.  9*  Mann's  Estate,  IGO  Pa.  St.  009. 

414,  quoted  in  Little's  Appeal,  117  ss  Smith    v.    Jacknian,    115   Mich. 

Pa.  St.   14.  192;    Godshalk  v.   Akey,   109   Mich, 

92Goldtree  v.  Thompson,   79  Cal.  350. 

613;    Stephen's  Estate,   164  Pa.   St.  96  Smith   v.   Jackman,    115   Mich, 

209;    Bailey   v.   Hawkins,    18   R.   I.  192. 
573;  MoGill  v.  Gardner    (Tenn.  Gh. 
Ap.)    (1898).  40  S.  W.  707. 


788  LAW     OF     WILLS. 

§671.     Destruction  of  contingent  legacy. 

Likewise,  upon  the  occurrence  of  such  contingencies  as  make 
it  impossible  for  the  contingency  upon  which  the  legacy  is  given 
ever  to  occur,  the  contingent  interest  is  absolutely  extinguished. 
Thus,  where  a  legacy  was  given  to  testator's  daughter,  and  it 
provided  that  if  she  should  die  before  her  husband,  without 
children,  the  legacy  should  go  to  the  children  of  a  son  of  tes- 
tator immediately  upon  the  death  of  the  daughter,  it  was  held 
that  the  contingent  interest  of  these  children  of  testator's  son 
was  destroyed  by  the  death  of  the  husband  of  the  daughter 
before  the  daughter,  although  she  was  childless  at  the  time.^' 

9T  Rebman  v.  Bierdoif,  186  Pa.  St. 
40i. 


LAW     OF     WILLS.  .  '°" 


CHAPTER  XXX. 

CONDITIONS. 


§672.     Classes  of  conditions. 

Estates  may  be  devised  either  absolutely  or  upon  condition. 
It  is  therefore,  often  of  great  practical  importance  to  deter- 
mine whether  a  will  devises  an  estate  absolutely  or  upon  con- 
dition ;  and,  if  upon  condition,  to  determine  the  exact  nature 
and  effect  thereof. 

Conditions  as  to  their  effect  upon  the  estate  to  which  they 
are  annexed  are  of  two  kinds,  precedent  and  subsequent,  and 
they  are  best  defined  separately  instead  of  by  a  general  defini- 
tion of  a  condition. 

A  condition  precedent  is  an  event  the  happening  or  not  hap- 
pening of  which  causes  a  conditional  estate  to  vest  or  to  be 
enlarged.^  A  condition  subsequent  is  an  event  the  happening 
or  not  happening  of  which  determines  an  estate  already  vested.^ 

§673.     Condition  distinguished  from  motive. 

It  is  often  diflicult  to  determine  whether  a  declaration  that  a 
certain  devise  was  on  account  of  something  to  be  done  by  the  de- 

1  Moore  v.  Perry,  42  S.  Car.  369.       412;    Tilley   v.   King,    109    N.    Car. 

2  McKinnon    v.    Lundy.    21     Ont.       461. 
App.  560;  Tappan's  Appeal,  .52  Conn. 


790 


LAW     OF     WJLLS. 


visee  before  the  death  of  testator  or  before  the  time  of  the  vest 
ing  of  the  estate,  is  a  condition,  or  merely  a  declaration  of  the 
motive  which  leads  testator  to  bestow  the  gift.  The  question,  how- 
ever, is  purely  one  of  construction  of  the  whole  will.  Where 
it  clearly  appears  that  the  gift  was  only  upon  condition  pre- 
cedent that  the  devisee  should  perform  some  act,  the  devise  will 
not  take  effect  unless  the  condition  is  complied  with ;  and  if 
It  appears  that  the  gift  is  to  fail  upon  the  happening  or  non- 
happening  of  the  event,  such  event  is  a  condition  subsequent.^ 

Although  there  is  some  authority  to  the  contrary,  it  seems 
not  to  be  necessary  that  the  devisee  should  be  informed  of  the 
condition."*  The  devise  may  further  refer  to  servuce  as  to  be 
made,  and  yet  not  be  conditioned  upon  the  rendition  of  such 
service.^ 

A  recital  in  a  will  that  the  legacy  given  is  in  consideration 
of  the  legatee's  attention  to  testatrix  and  her  husband,'^  or  an 
expression  of  gratitude  toward  a  legatee  for  his  services  to  be 
rendered  as  executor,'^  was  held  to  be  an  expression  of  motive 
of  testator  in  making  the  gift,  and  not  a  condition  upon  which 


3  Whiting's  Appeal,  67  Conn.  379; 
Tilley  v.  King,  109  N.  Car.  461 
(a  devise  was  on  condition  that  de- 
visee "stays  with  us  until  after 
our  deaths."  Although  there  was  no 
devise  over,  it  was  held  that  if  he 
did  not  stay  his  devise  was  for- 
feited ) . 

4  Whiting's  Appeal,  67  Conn.  379 ; 
(In  this  case  a  deviss  was  made  to 
one  provided  he  should  pay  the  tes- 
tatrix a  certain  sum  equal  in  value 
to  the  property  which  he  had  re- 
ceived from  her.  Subsequently  by 
agreement  between  the  testatrix  and 
the  devisee,  the  interest  only  was  to 
be  paid  during  the  life  of  the  testa- 
trix, and  it  was  agreed  that  in  case 
of  the  death  of  testatrix  before  that 
of  the  devisee,  the  debts  should  be 
given  to  the  devisee.  Subsequently 
the  testatrix  executed  a  codicil  re- 
affirming the  will.  It  was  held  that 
the   pajment   of   interest   under   the 


contract  did  not  prevent  the  for- 
feiture of  the  devise  unless  the  de- 
visee should  pay  the  sums  speci- 
field. )  Merrill  v.  Wisconsin  Fe- 
male College,  74  Wis.  415. 

5  Bigstaff  V.  Lumpkins  (Ky.).  16 
S.  W.  449;  13  Ky.  L.  Rep.  448.  (In 
this  case  testator  devised  the  ser- 
vices of  his  slaves  to  his  heirs, 
until  his  slaves  reached  the  age  of 
thirty  years  respectively,  when  they 
were  to  be  freed  and  receive  cer- 
tain liinds.  The  heirs  freed  the 
slaves  at  once.  It  was  held  that 
this  did  not  destroy  the  devise, 
as  it  was  not  conditioned  upon  the 
rendition   of  the  services.) 

6  McCarty  v.  Fish.  87  Mich.  48. 

7  Chassaing  v.  Durrand.  85  Md. 
420.  (After  the  srift  was  added  "I 
thank  him  in  advance  for  services 
in  closing  up  my  estate  as  testa- 
mentary executor.") 


LAW     OF     WILLS. 


791 


he  made  it.  Accordiiiglv,  the  faihire  of  the  beneficiary  to  act 
as  expected  by  testator  does  not  avoid  a  gift.  So  a  gift  of  a 
homestead  to  testator's  wife  ''for  a  home  for  her  and  my  chil 
dren"  shows  testator's  motive  in  making  the  gift,  and  does  not 
impose  a  condition  that  testator's  wife  shall  continue  to  reside 
thereon.* 

A  gift  to  one  upon  condition  that  after  receiving  the  gift  he 
pay  certain  sums  of  money  to  persons  designated,  is  generally 
considered  not  strictly  a  condition,  the  breach  of  which  may  for- 
feit the  estate,  but  rather  as  imposing  a  personal  liability  upon 
such  devisee,  or  as  creating  a  trust. '^  But  where  the  payment 
to  a  class  is  especially  made  a  condition  precedent  to  the  vest- 
ing of  the  devise,  it  is  held  to  be  a  valid  condition.^*' 

§674.     Construction  of  conditions  in  general. 

As  a  general  and  broad  proposition  it  may  be  said  that  the 
law  favors  such  construction  as  will  create  an  absolute  rather 
than  a  conditional  estate.^ ^     Thus,  where  testator  devised  cer- 


8  Davis  V.  Hardin,  80  Ky.  G72; 
Talbot  V.  Schneider,  151  Mo.  299. 

9  Young  V.  Grove,  4  C.  B.  G(38 ; 
Woodward  v.  Walling,  31  la.  533; 
Cunningham  v.  Parker,  140  N.  Y. 
29.  (This  is  recognized  by  the  courts 
especially  where  there  is  no  gift 
over. ) 

10  Moore  v.  Perry,  42  S.  C.  369. 
(A  gift  of  a  house  and  lot  encum- 
bered by  a  mortgage"  to  be  owned 
by  all  the  children  as  soon  as  the 
mortgage  is  satisfied,  provided," 
that  they  pay  to  one  of  the  chil- 
dren what  he  has  paid  or  may  pay  to 
ward  satisfying  the  mortgage,  is 
held  to  be  a  gift  upmi  condition 
precedent,  not  vesting  until  all  the 
beneficiaries  have  repaid  the 
amovmt  advanced,  and  a  delay  of 
several  years  was  held  to  be  a  re- 
nunciation of  their  right  to  ac- 
quire an  interest  in  the  property.) 

11  Tarver  v.  Tarver,  9  Pet.  (U,  S.) 
174;   Ponner  v.  Young,  08   Ala.  35; 


Likefield  v.  Likefield,  82  Ky.  589; 
Bentz  V.  Maryland  Bible  Society, 
86  Md.  102,  1897  ;  37  Atl.  708  ;  Mc- 
Elwaine  v.  Holyoke  First  Congrega- 
tional Society,  153  Mass.  238;  Van 
Giesen  v.  White,  53  N.  J.  Eq.  1; 
Acken  v.  Osborn,  18  Stew.  Eq.  377  ; 

1  Dick.  Ch.  607;  Crane  v.  Bolles, 
4  Dick.  373;  Newell  v.  Nichols,  75 
N.  Y.  78 ;  Smith's  Appeal,  23  Pa.  St. 
9;  Casey  v.  Casey,  55  Vt.  518; 
Lovass  V.  Olson,  92  Wis.  616  (a  leg- 
acy to  A  to  be  paid  within  one 
year  after  the  death  of  testator's 
wife  "if  she  survive  me,"  was  held 
conditional  as  to  the  time  of  pay- 
ment only,  not  as  to  the  existence 
of  the  legacy). 

A  construction  which  creates  a 
covenant  upon  the  part  of  devisee 
to  do  certain  acts  is  preferred  to 
one  which  creates  a  condition  divest- 
ing hio  estate  upon  failure  to  do 
such   acts.     Worman  v.  Teagarden, 

2  O.  S.  380. 


792  LAW    OF    WILLS. 

tain  lands  to  his  son  on  condition  that  testator  gained  a  cer- 
tain law  suit,  and  then  inimediately  after  devised  "also  four 
sections  of  my  Texas  land,"  it  was  held  that  the  devise  of  the 
Texas  land  was  not  contingent  upon  the  result  of  the  litiga- 
tion.^" 

Conditions  as  to  the  gift  of  the  principal  will  not  he  extended 
by  construction  to  apply  to  gifts  of  the  income  in  preceding 
clauses,^  ^  nor  will  conditions  as  to  residuum  be  extended  to  pre- 
vious gifts.-^^ 

Conditions  attached  to  a  legacy  in  a  will,  are,  however,  pre- 
sumed to  attach  to  a  substituted  legacy  given  in  a  codicil,^ ^  and 
if  the  estate  is  clearly  intended  to  be  conditional,  the  law 
will  construe  it  an  as  estate  upon  condition  subsequent  rather 
than  upon  condition  precedent,  since  the  law  favors  the  early 
vesting  of  estates.^  ^ 

In  actual  practice,  conditions  which  tend  to  defeat  estates 
are  quite  strictly  construed.^  ^  Thus,  where  land  was  devised 
to  testator's  widow  for  life  or  during  widowhood,  with  re- 
mainder over  upon  her  remarriage  or  death  to  testator's  son, 
and,  in  the  event  of  his  dying  before  majority  and  her  remarry- 
ing before  his  death,  to  testator's  mother  and  brother  equally,  it 
was  held  that  where  the  son  died  before  coming  of  age,  and 
before  the  remarriage  of  the  widow,  she  took  the  land  in  fee 
as  the  heir  of  such  son.^^ 

Where  an  estate  is  to  cease  upon  the  performance  of  two 
conditions,  both  must  be  performed  in  order  to  determine  the 
estate.^  ^  Thus,  \\»hcre  a  gift  to  two  sons  provided  that  if 
neither  have  issue    the  fund  was  to  go  to  another,  it  is  held 

12  Yeatman  v.  Haney,  79  Tex.  67.  i7  McFarland    v.    McFarland,    177 

13  McElwain  v.  Holyoke  First  Con-       111.  208. 

gregational   Society,   153  Mass.  238.  is  McGurry  v.  Wall,  122  Mo.  614; 

14  Bedford  v.  Bedford,  99  Ky.  273.       614 ;    Patterson    v.    Madden,    54    N. 

15  DeLaveaga's    Estate,    119    Cal.       J.  Eq.  714. 

651.  19  Laurence  v.   McQuarrie,   26   N. 

leMcKinnon    v.    Lundy,    21    Ont.  S.  164;  Bedford  v.  Bedford,  99  Ky. 

App.  560;   Gingrich  v.  Ginrich,  146  273;    Forsyth  v.   Forsyth,  46  N.   J. 

Ind.    227;    Hoss   v.    Hoss,    140    Ind.  Eq.  400;  Kennedy's  Estate,  190  Pa. 

551 ;    Marwick   v.   Andrews,   25   Me.  St.  79. 
525;    Yeatman    v.    Haney,    79    Tex. 
67. 


LAW    OF    WILLS.  793 

that  such  other  docs  not  take  where  either  of  the  sons  have 
issue.^*^  So  a  devise  to  A,  with  a  reversion  if  she  died  ''be- 
fore her  son  shall  have  arrived  at  the  age  of  maturity,  and 
should  her  son  die  without  issue,"  was  held  conditioned  upon 
the  double  contingency  of  the  death  of  A  during  her  son's 
minority,  and  his  death  without  issue.^^  A  gift  to  testator' 
wife  for  life  or  during  widowhood,  with  remainder  over  to  A 
upon  her  remarriage,  is  held  to  give  A  a  remainder  taking 
effect  upon  the  death  of  the  widow.^^ 

§675.     Effect  of  failure  of  condition. 

If  a  condition  precedent  becomes  impossible,  the  estate 
which  depended  upon  it  can  never  take  effect.^^  If  a  condi- 
tion is  clearly  created,  breach  of  such  condition  defeats  the 
estate,  even  where  the  condition  was  beyond  the  control  of 
the  beneficiary,  and  he  Avas  entirely  free  from  blame.^^  Thus 
a  direction  to  executor  to  pay  a  legacy  to  A  when  he  attains 
the  age  of  thirty,  if  the  executor  thinks  that  he  will  make  a 
prudent  use  of  it,  fails  where  A  dies  before  the  testator."^ 

Where  a  condition  subsequent  becomes  impossible,  the  gen- 
eral rule  is  that  an  estate  granted  upon  it  can  never  be  di- 
vested.^*' Thus  a  devise  of  realty  on  condition  that  devisee 
pay  oif  a  mortgage  was  held  to  be  on  condition  subsequent 
and  not  defeated  by  pajTuent  of  the  mortgage  by  testator,^'^     So 

20  Collins  V.  Collins,  40  0.  S.  Boston,  172  111.  439;  Johnson  v. 
353;  Kennedy's  Estate,  190  Pa.  St.  Warren,  74  Mich.  491;  West  v. 
79.  Moore,  37  Miss.  114;  Wilson  v.  Hall, 

21  Bedford  v.  Bedford.  t)9  Ky.  273.  6  Ohio  C.  C.  570;   Stark  v.  Conde, 

22  Smith    V    Chadwick,    111    Ala.  100  Wis.  633. 

542,     1896;     20    So.   43G ;    Terry   v.  24  Stark  v.   Conde,   100   Wis.   633. 

Bourne,  —  Ky.  —  1896 ;   33  S.-  W.  25  Starke  v.  Conde,  100  Wis.  633. 

403.     (The  whole  will  showed  testa-  26  McKinnon    v.    Lundy,    21    Ont. 

tor's  intention  to  create  a  remain-  App.     560 ;     Derickson    v.    Garden, 

der   in  A  upon  the  termination   of  5   Del.   Ch.   323;    Morse  v.   Hayden, 

the  widow's  estate,  which  intention  82  Me.  227 ;   Parker  v.  Parker,   123 

the    courts    would    not    defeat    be-  ]\Iass.  584 ;  Conrad  v.  Long,  33  Mich, 

cause  re-marriage  only  was  express-  78 ;  Dukes  v.  Faulk,  37  S.  C.  2'iu ; 

ly  mentioned.)  Burnhani  v.  Burnham,  79  Wis.  557. 

23  Boyce  v.  Boyce,  16  Sim.  476:  27  MeKinnon  v.  Lundy,  21  Ont. 
Davis   V.   Angel,   4   De  G.   F.   &   J.  App.  560. 

524;     31    Beav.    223;     Ransdell    v. 


794 


LAW     OF     WILLS. 


a  gift  to  A  on  condition  that  he  support  B  was  held  to  be 
on  condition  subsequent,  and  was  not  defeated  by  B's  death 
before  testator.^* 

A  gift  to  A  of  certain  property,  for  the  purpose  of  giving 
him  a  collegiate  education,  with  a  gift  over  if  he  did  not  make 
such  use  of  it  by  reason  of  his  indifference  is  not  defeated 
by  A's  death  while  j)ursuing  his  studies.^^ 

Where,  however,  a  condition  subsequent  is  made  to  a  legatee 
which,  as  in  case  of  corporation,  has  no  legal  powers  to  per- 
form the  condition,  it  has  been  held  that  the  gift  can  never 
take  effect.^*'  But  if  the  nominal  condition  is  in  reality  a 
gift  of  a  life  estate  to  A,  with  remainder  over  to  the  corpora- 
tion, it  is,  of  course,  valid.^^ 

§676.     Conditions  concerning-  death  of  devisee. 

Where  the  testator  devises  property  to  a  named  beneficiary 
with  the  condition  that  if  this  beneficiary  shall  die  ''without 
issue"  or  "without  heirs"  the  property  devised  shall  go  to 
some  other  designated  person,  several  interesting  questions 
are  presented.  The  first  question  to  consider  is  whether  this 
is  a  devise  upon  condition  or  not.  The  termination  of  this 
question  turns  on  the  construction  of  the  phrase  "dying  with- 
out issue."  The  weight  of  modern  authority  is  that  such  a 
phrase,  without  anything  further  in  the  will  to  indicate  the 
intention  of  testator,  and  when  inserted  in  order  to  provide  for 

28  Morse  v.   Hayden,   82  Me.   227.  3i  A   gift   to   a    corporation    upon 

29  Ellicott  y.  Ellicott  (Md. ),  condition  that  the  corporation  pay 
1900;   45  Atl.  183;  48  L.  R.  A.  58.  an  annual  sum  equal  to  the  interest 

30  Bullard  v.  Shirley,  153  Mass.  on  such  gift  to  certain  named  per- 
559;   12  L.  R.  A.  110.  sons    for    life   has   been    held   to   be 

Contra,  Carder  v.  Fayette  County,  valid,  although  the  corporation  had 
16  O.  S.  353.  In  this  case  a  devise  no  legal  power  to  make  such  per- 
was  made  to  a  county  upon  con-  sons  its  beneficiaries,  since  the  con- 
dition that  it  paid  an  annuity  to  dition  is  in  effect  only  to  hoUl 
testator's  widow.  In  a  suit  i^i-  the  principle  as  trustee  for  the  life 
volving  the  validity  of  this  annuity  of  the  beneficiaries,  and  upon  their 
it  was  held  that  the  question  of  the  death  to  trustee's  own  use.  Booth 
power  of  the  county  to  pay  such  an-  v.  Baptist  Church,  12C  X.  Y.  215. 
nuity  or  to  impose  a  tax  for  such 
purpose  was  immaterial. 


LAW    OF    WILLS. 


795 


a  gift  to  another  in  the  event  of  dying  without  issue,  means 
death  in  the  lifetime  of  testator.  Accordingly,  if  the  bene- 
ficiary named  in  the  will  dies  before  the  testator,  neither  his 
estate  nor  his  heirs  can  claim  any  interest  in  the  devise,  while, 
if  he  survives  testator,  he  takes  an  absolute  fee  simple  free 
from  any  conditions.^" 

This  construction  treats  these  words  as  not  strictly  condi- 
tions, but  as  directions  for  substitution  in  order  to  prevent  lapse ; 
and,  if  at  the  death  of  testator,  the  designated  beneficiary  sur- 
vives him,  he  takes  the  estate  given  absolutely,  and  is  not 
divested  thereof  by  his  subsequent  death  without  issue,  but  it 
passes  by  his  will,  or  descends  as  his  property  in  case  of  in- 
testacy.^^ 


32  Burdge  v.  Walling,  45  N.  J.  Eq. 
10;    Pennington   v.   Van   Houten,   4 
Hal.  Ch.  272 ;  4  Hal.  Ch.  745 ;  Wil- 
liamson   V.    Chamberlain,    2    Stock. 
373;    Baldwin   v.   Taylor,    37   N.   J. 
Eq.  78;    38   N.  J.  Eq.   637;   Barreil 
V.  Bariell,  38  N.  J.  Eq.  60;   Lafoy 
V.  Campbell,  42  N.  J.  Eq.  34 ;  Walsh 
V.  McCutcheon,  71  Conn.  283;  Law- 
lor  V.  Holohan,   70  Conn,  page  87 ; 
Morgan   v.   Robbins,    152   Ind.   362; 
Moore    v.    Schindehette,    102    Mich. 
612;   In  re  N.  Y.  L.  &  W.   R.   Co., 
105    N.   Y.    89;    Stokes   v.   Weston, 
142    N.    Y.    433;     Benson    v.    Cor- 
bin,      145      N.      Y.      351  :      Wash- 
bon     V.     Cope,     144     N.     Y.     287; 
Baker      v.      McGrew,      41      0.      S. 
113;    Smith    v.    Hankins,    27    O.    S. 
371;    Patterson   v.   Earhart,   29   W. 
L.  B.  313;  Sugden  v.  McKenna,  147 
Pa.    St.    55;    Mitchell   v.   Pittsburg, 
etc.,  Ry.,  165  Pa.  St.  645;  Morrison 
V.  Truby,  145  Pa.  St.  540:  Keating 
V.  McAdoo,   180  Pa.   St.  5;   Engel's 
Estate,    180   Pa.    St.   215;   Flick   v. 
Forest    Oil    Co.,    188    Pa.' St.    317; 
Bethea  v.   Bethea,  48   S.   Car.  440; 
20   S.   E.   716;    Lovass  v.   Olson,   92 
Wis.   616. 


"It  may  be  regarded  as  a  settled 
rule  of  construction  that  where  there 
is  a  devise  to  one  person  in  fee  and 
in  case  of  his  death  to  another,  the 
contingency  referred  to  is  the  death 
of  the  first  named  beneficiary  dur- 
ing the  lifetime  of  the  testator,  and 
that  if  such  devisee  survives  the 
testator,  he  takes  an  absolute  fee ; 
that  the  words  of  contingency  do 
not  create  a  remainder  over,  to 
take  effect  upon  the  death  at  any 
time  of  the  first  taker,  nor  an  ex- 
ecutory devise,  but  are  merely  sub- 
stitutionary and  used  for  the  pur- 
pose of  preventing  a  lapse  in  case 
the  devise  first  named  should  not 
be  living  at  the  time  of  the  death  of 
the  testator."  In  re  N.  Y.  L.  & 
W.  R.  Co.,  105  N.  Y.  89,  quoted  in 
Stokes  v.  Weston.  142  N.  Y.  432. 
33  Pendleton  v.  Bowler,  27  W.  L. 
B.  313:  Patterson  v.  Earhart,  6 
Ohio  Dec.  16:  Engel's  Estate,  180 
Pa.  St.  215:  .Jackson's  Estate,  17'9 
Pa.  St.  77 ;  Meacham  v.  Graham,  98 
Tenn.  190;   39  S.  W.  12. 


796 


LAW     OF     WILLS. 


This  rule,  while  occasionally  open  to  criticism  as  in  indi- 
vidual cases  tending  to  defeat  the  will  of  testator,  probably 
enforces  the  intention  of  testator  in  the  average  number  of 
cases  as  well  as  any  which  could  be  suggested.  The  rule  itself 
grows  out  of  the  principle  that  the  law  favors  absolute  rather 
than  conditional  estates.'^^  Testator's  intention  is,  at  best,  doubt- 
ful in  such  oases ;  and  the  law  accordingly  settles  such  doubt  by 
construing  the  will  as  creating  an  absolute  estate,  with  a  sub- 
stitution of  the  beneficiary  in  case  the  first  named  beneficiary 
dies  before  testator."^^  Such  presumption  is  strengthened  where 
it  appears  from  the  will  that  testator  meant  to  give  to  the  ben- 
eficiary such  estate  as  he  could  sell  and  dispose  of  absolutely ;  ^^ 
and  such  presumption  is  not  overcome  by  a  provision  that  if 
any  rents  and  profits  accumulate  before  the  death  of  the  first 
devisee  they  shall  pass  to  a  second.^ ^  The  presumption  that 
"dying  without  issue"  in  such  case  means  death  during  the  life- 
time of  testator  may  be  overcome  by  an  express  provision  in 
the  will.  The  rule  that  "death"  means  death  during  the  life- 
time of  testator  is  only  a  prima  facie  rule  of  construction.  Thq 
context  of  the  will  may  show  that  testator  had  fixed  some  other 
point  of  time  as  that  upon  which  such  death,  or  death  without 

34  See  Sec.  674.  1  Am.  Rep.  30 ;  Embury  v.  Sheldon, 

ssLifford    v.    Sparrow,    13    East.  68  N.  Y.  227 ;  Stokes  v.  Weston,  142 

359;    Gee  v.   Manchester,    17   Ad.   &  K  Y.  433;  rev.  69  Hun,  608;  Black 

Ell.  737;  Woodburne  v.  Woodburne,  v.  Williams,  51  Hun,   (N.  Y.),  280; 

23    L.   J.    Ch.    336;    First   National  Moore   v.    Lyons,    25    Wend.    N.    Y. 

Bank  v.  DePauw,  86   Fed.   722;    30  119;    Nelson  v.  Russell,    135   N.   Y^ 

C.   C.  App.   360;   Austin  v.   Bristol,  137;   Vanderzee  v.   Slingerland,   103 

40  Conn.  120;  16  Am.  Rep.  23;  Gay  N.  Y".  47;   Brown  v.  Lippincott,  49 

V.  Dibble    (Conn.),    (1900),  45  Atl.  N.  J.  Eq.  44;   Cowley  v.  Knapp,  13 

359;     Rickards    v.    Gray,    6    Hous.  Vr.    297;     King   v.    Frick,    135    Pa. 

(Del.),  232;    Jones  v.  Webb,  5  Del.  St.    575;    Morrison    v.    Truby,    145 

Ch.   132;   Arnold  v.  Alden,   173  111.  Pa.    St.    540;    Coles    v.    Ayres,    156 

229;    Wright   v.    Charley,    129    Ind.  Pa.  St.  197;   Harris  v.  Dyer,  18  R. 

257;    Borgner    v.    Brown,    133    Ind.  I.  540;  In  re  Durfee,  17  R.  I.  639; 

391;    Fowler    v.    Duhme,    143    Ind.  Lovass's   Estate,   92    Wis.    616;    see 

248 ;     Antioch    College   v.    Branson,  Sec.  582. 

145  Ind.  312;  Cornwall  V.  Falls  City  36  Benson    v.    Corbin,    145    N.    Y. 

Bank   (Ky.),  18  S.  W.  452;   13  Ky.  351. 

L.    Rep.    606;     Small    v.    Marburg,  37  Lawlor    v.    Holohan,    70    Conn. 

77  Md.   11;   Cox  V.  Handy,  78  Md.  87. 
108:   Branson  v.  Hill,  31  Md.  181; 


LAW    OF    WILLS. 


797 


issue,  is  to  occur  in  order  to  divest  the  estate.^^  Thus  the 
testator  may  fix  the  arrival  of  the  legatee  or  devisee  at  a  certain 
age  as  the  time  before  which  the  death  is  to  occur,^^  or  he  may 
fix  the  marriage  of  the  legatee  or  devisee  as  such  time."*^ 

Even  where  testator  does  not  fix  the  time,  before  which  the 
death  is  to  occur  in  order  to  defeat  the  estate,  as  subsequent 
to  his  ovm  death,  the  context  of  the  will  may  show  that  such 
was  his  intention.  One  of  the  commonest  forms  wliich  the 
context  assumes  in  order  to  show  such  intention  is  where  testator 
creates  a  life  estate  to  one,  and  subsequent  to  that  a  remainder 
to  another,  provided  that  on  the  death  of  such  other  (generally 
"without  issue")  the  estate  shall  go  to  a  third  beneficiary. 
Under  such  devise  the  testator  contemplates  death  of  the  first 
remainderman  subsequent  to  his  o^^m.^^ 

This  rule  has  especial  application  where  the  life  tenant  is 
also  executrix,  and  provision  is  made  by  will  for  the  appoint- 
ment of  another  person  as  executor  upon  the  "death"  of  the 
wife.^2  Where  the  "death,"  or  "death  without  issue,"  is  to 
occur  subsequent  to  the  death  of  testator,  a  conditional  estate 
is  created  defeasible  upon  a  condition  subsequent  in  the  event  of 
the  occurrence  of  the  death  as  specified  in  the  will,  provided 
the  condition  is  one  which  the  law  will  enforce  in  other 
respects.^^     Hence,  a  devise  to  one  and  his  heirs  provided  that, 

ssHollister    v.     Butterworth,     71  St.  587;   McMasters  v.  Negley,   152 

Conn.  57;  Kinney  v.  Keplinger,  172  Pa.  St.  303. 

111.  449;  Jordan  v.  Hinkle,  82  N.  W.  ■io  Forman       v.       Woods        (Ky.) 

426;    Nayior    v.    Godman,    109    Mo.  ( 1899) ,  ,50  S.  W.  Gl. 

543;    Kornegay    v.    Morris,    122    N.  ti  Hollister     v.     Butterworth,     71 

C.  199,  modified  on  rehearing  123  N.  Conn.   57  ;    Naylor   v.   Godman,    109 

C.  128;  31  S.  E.  375;  Brown  v.  Lip-  Mo.  543;  Kornegay  v.  Morris,  122  N. 

pincott,    49    N.    J.    Eq.    444;    Shim-  C.    199,    modified    on   rehearing    123 

er   V.    Shinier.    50   N.    J.    Eq.    300;  (N.   C.)    128;    31   S.  E.   .375;   In  re 

In  re  Denton,  137  N.  Y.  428;  Mead  Denton,  173  N.  Y.  428. 

V.   Maben,   60   Hun,   208;    Pendleton  42  Kinney    v.    Keplinger,    172    111. 

V.   Bowler    (Cin.   S.   0.),   27   W.   L.  449,  reversing  71   111.   App.   334. 

J3    ^]^_  43  Xewson  v.  Holesapple,  101  Ala. 

39  Rogers'    Estate,    94    Cal.    526;  682  :  Bethea  v.  Bethea,  116  Ala.  265 

limas   V.    Neidt,    101    la.    348,    Me-  Koeffler    v.    Koeffler,    185    111.    261 

Daniel  V.  McDaniel   (Ky.),  15  S.  W.  Smith    V.    Kimball,    153    111.    .368 

129;    Shinier    v.    Shinier,    50    N.    J.  Pate  v.  French,   122   Ind.  page   10 

Eq.    300;    Smith's    Estate,    1S9    Pa.  Jones  v.  Moore,  96  Kv.  273;   Pruitt 


798  LAW    OF    WILLS. 

if  the  first  taker  should  die  without  lawful  issue,  the  estate 
should  go  over  to  another,  gives  the  first  taker  a  fee  defeasible 
upon  his  death  without  issue;  and  in  case  of  his  death  with 
issue,  such  issue  have  no  interest  in  the  property  devised  as 
against  grantees  or  devisees  of  the  first  taker.^^ 

The  intention  of  testator  that  dying  without  issue  may  mean 
a  death  after  the  death  of  testator  may  also  be  inferred  from 
other  provisions  in  the  will.  Thus,  a  provision  that,  in  case  of 
the  death  of  the  beneficiary  without  issue,  her  share  shall  revert 
to  the  estate  of  testator  shows  that  he  contemplates  her  death 
without  issue  after  his  own.^^  So  a  provision  that  certain  lands 
shall  pass  to  testator's  sons  after  the  death  of  testator's  widow, 
provided  that  if  either  dies  without  issue  his  estate  shall  pass 
to  another,  shows  that  the  death  without  issue  meant  a  death 
after  that  of  testator.^^ 

Where  a  life  estate  is  created  and  interests  of  the  remainder- 
men are  postponed  simply  in  order  to  permit  of  the  creation 
of  the  life  estate  for  the  benefit  of  the  life  tenant,  the  remainder 
vests  immediately  in  possession  upon  testator's  death  if  the  life 
tenant  has  died  before  testator ;  and  the  vesting  of  a  life  estate 
in  the  remainderman  is  not  condition  precedent  to  the  vesting 
of  the  remainder.^'''  Where  the  condition  on  which  the  estate 
is  to  pass  over  is  the  death  of  the  one  without  "leaving"  a 
child,  it  was  held  that  the  estate  goes  over  where  such  named 

V.  Holland  (Ky.),  18  S.  W.  852;  dies  without  heirs  of  her  ovv-n  body," 
13  K\.  L.  Rep.  867;  Brooks  v.  then  to  B.  Held  a  fee  in  A,  de- 
Kip,  54  N.  J.  Eq.  462;  Hinkson  feasible  on  event  of  her  death  with- 
V.  Lees,  181  Pa.  St.  225;  Thomson  out  issue  surviving  her.)  Shaw  v. 
V.  Peake,  38  S.  C.  450  (440)  ;  Shaw  Erwin,  41  S.  C.  209;  Malona  v. 
V.  Erwin,  4  S.  C.  209;  Jennings  v.  Schwing,  101  Ky.  56. 
Parr,  51  S.  C.  191 ;  Waring  v.  War-  45  Hutchins  v.  Pearce,  80  Md. 
ing,  96  Va.  641.  434;    Trexler   v.   Holler,   107   N.   C. 

44  Bethea  v.  Bethea,  116  Ala,  265;  617. 

Mitchell   v.   Campbell,    94   Ky.    347.  46  Daniel  v.  Daniel,  102  Ga.  181; 

(A   devise   to   A   providing   that   A  Lafoy  v.  Campbell,  42  X.  J.  Eq.  34. 

•'shall    continue    the    ownership    of  47  Healy  v.  Healy,  70  Conn.  467 ; 

the    estate    and    do    as    she    pleases  Hollister   v.   Butterworth,   71   Conn, 

with  it  at  her  death,  provided   she  57;    In  re   Burrows    (1895),   2   Ch. 

leaves  heirs  of  her  own  body,  which  497. 
heirs   are   to   take    it.      But   if    she 


LAW     OF     WILLS. 


799 


person  had  a  child,  but  the  child  died  before  snch  parent.^  "^ 
But  where  the  devisee  dies  leaving  a  posthumous  child,  the 
condition  is  complied  with.'*^ 

Where  the  evident  intention  of  testator  is  to  create  an  estate 
which  will  descend  to  the  heirs  of  the  first  taker,  the  courts 
often  allow  considerable  latitude  in  moulding  the  language  of 
a  condition  to  make  it  conform  to  such  an  intention.  Thus  it 
is  not  uncommon  for  testator  to  devise  property  to  one  and  his 
heirs,  and  then  provide  that  if  such  taker  should  die  under  a 
certaiH  age  the  property  given  should  pass  to  another.  Unless 
the  context  clearly  shows  a  contrary  intention  such  a  condition 
is  construed  to  mean  if  the  first  taker  shall  die  under  age 
and  without  issue. ^^ 

This  doctrine  has  been  extended  to  a  case  where  there  was 
a  gift  to  A  without  any  reference  in  the  will  to  his  heirs,  tlu? 
statute  making  such  gift  carry  a  fee  simple  unless  a  con- 
trary intention  appears.  In  this  case  a  devise  was  created 
in  trust  for  the  daughter  of  testator  until  she  should  become 
twenty-one,  when  the  principal  should  be  paid  over  to  her  ab- 
solutely. The  will  provided  further  that  if  she  should  die 
before  she  became  twenty-one  years  of  age  the  estate  should 
go  over  to  another.  The  court  construed  this  condition  as  mean- 
ing if  she  should  die  under  twenty-one  and  without  issue ; 
so,  if  she  had  married,  had  a  child-,  and  died  under  the  age 
of  twenty -one,  such  child  took  by  descent  from  her.^^  So, 
where  testator  left  real  pro]3erty  to  certain  devisees  with  a 
gift  over,  if  the  devisees  or  "any  of  them"  should  die,  it  was 
held  that  this  condition,  though  literally  divesting  all  the 
devisees  of  their  shares,  applied  only  to  the  share  of  the 
one  dying.^^      So,  in  a  gift  to  a  married  woman  for  life,  and 

48 /n    re    Hemingway,    L.    R.    45  Sprig,  7  Gill.   (M.  D.),  197;  48  Am. 

Ch.  D.  453.  Dec.  557;    Prosser  v.   Hardesty,  101 

49  Smitli's  Estate,  189  Pa.  St.  Mo.  593 ;  Nelson  v.  Combs,  18  N.  J. 
587.  L.  27;  Liston  v.  Jenkins,  2  W.  Va. 

50  Spalding  v.  Spalding,  Cio.  Car.  62. 

185;     Strong    v.    Cummin,    2    Burr.  si  Baker  v.  McLeod,  79  Wis.  534: 

767;   Abbott  v.  Middleton,  21   Beav.  so    Prosser    v.    Hardesty,    101    Mo. 

143;    7    H.    L.    Cas.    68;    Phelps    v.  593. 

Bates,  54  Conn.  11;   Young  v.  Har-  52  Xichols    v.     Boswell,     103    Mo. 

kleroad,     166    111.    318;     Janney    v.  151. 


800  LAW    OF    WILLS. 

at  lier  death  to  the  heirs  of  her  body,  subject  to  her  husband's 
life  estate,  with  a  gift  over  if  she  died  without  issue,  it  was 
held  that  the  life  estate  of  the  husband  was  not  affected  by  the 
condition. ^^ 

In  a  gift  over  if  devisee  died  under  age,  or  without  issue 
and  without  having  disposed  of  the  property,  it  was  held  that 
the  condition  was  complied  with  by  a  deed  to  the  father  of 
such  beneficiary  subject  to  a  trust  for  beneficiary  for  life, 
and  on  his  death  for  his  wife  and  child ren.^^ 

Whether  the  ''death"  referred  to  is  death  before  or  after 
testator's,  the  will  provides  for  a  substitution  of  the  persons 
designated  in  the  alternative  for  the  first  beneficiary  named  in 
the  will.^^ 

§677.     Conditions  as  to  birth  of  issue. 

A  condition  dependent  on  the  birth  of  issue  is  valid  if  not 
in  violation  of  the  rule  against  perpetuities,  and  is  one  of  the 
commonest  conditions  imposed.^^ 

Where  the  birth  of  issue  is  so  remote  as  to  violate  the  rule 
against    perpetuities,    the    condition    is,    of    course,    invalid.^' 

Such  a  condition  is  usually  held  not  to  be  broken  until  the 
death  of  the  person  indicated  by  the  condition  as  the  parent  of 
the  prospective  issue,  or  the  lapse  of  the  time  within  which,  by 
the  provisions  of  the  will,  the  issue  are  to  be  born.  The  fact 
that  it  is  extremely  improba1)lc,  or  in  fact  imposible,  as  where 
the  woman  who  is  indicated  as  the  mother  of  the  issue  is  past 
the  age  of  child-bearing,  does  not  amount  to  a  breach  of  the 
condition. ^^ 

In  a  recent  English  case,  however,  it  was  held  where  a  fund 
was  given  to  A  unless  B,  a  woman,  should  have  a  child,  and 
B  was  childless  and  past  the  age  of  child-bearing,  that  the 
income  might  be  paid  to  A.^^ 

53  Hatchett    v.    Henderson    Trust  elusive;      see    Sec.    676    for    "dying 

Co.  —   (Ky.),   1897;   39  S.  W.  23.5.  without  issue." 

5t  Miles  V.   Strong:,  68  Conn.  273.  ^i  Jn   re   Benee    (C.   A.),   1891,   3 

55  Exton  V.  Hutchinson,  .53  N.  J.  Ch.  242. 

Eq.    688;    Fahnestock's   Estate,    147  ss  Carney  v.  Kain,  40  W.  Va.  7.58. 

Pa.  St.  327  :  Minis  V.  Macklin,  53  S.  597^,1   re   Lowman    (C.    A.)     1895, 

Car.  6.  2  Ch.  348. 

5G  See    Sec.    591    to    Sec.    594    in- 


LAW     OF     WILLS.  801 

§678.     Conditions  as  to  support  or  services. 

A  condition  that  a  devisee  shall  support  a  person  named, 
or  work  for  such  person,  is  perfectly  reasonable  and  consis- 
tent with  the  policy  of  the  law,  and  is  constantly  upheld.^*^  In 
most  states  such  conditions  are,  wherever  possible,  held  to  be 
conditions  subsequent.*^ ^  And  hence  the  gift  is  not  avoided 
because  the  support  is  not  given  by  reason  of  the  fact  that  the 
person  to  be  supported  dies  before  testator  ;^2  ^y^  by  the  death 
of  the  person  who  is  bound  to  furnish  support  and  attention 
before  that  of  the  person  who  is  to  be  supported.*^^ 

Where  a  part  of  a  farm  is  devised  to  a  son  upon  the  condi- 
tion that  he  should  work  the  whole  farm,  taking  two-thirds  of 
the  crops,  and  giving  one-third  to  the  wife  of  testator,  and  sub- 
sequently all  the  farm,  except  that  devised  to  the  son,  was 
sold  in  a  partition  suit  brought  by  the  widow,  it  was  held  that 
the  son  was  bound  to  pay  to  the  widow  one-third  of  the  crops 
raised  on  the  part  devised  to  him,  but  nothing  further.^^ 

Where  testator  provides  that  certain  devisees  shall  receive 
specified  devises  on  condition  of  performing  certain  services 
for  persons  named,  or  for  the  estate  of  testator,  it  is  held 
that  the  persons  for  whom  the  services  are  to  be  rendered  can 
not  avoid  the  devise  by  making  the  rendition  of  the  services 
impossible.^^     Thus  testator  provided  that  if  two  former  slaves 

00  Gingrich  v.  Gingrich,   146   Ind.  the   payment   is   made.      Barfield  v. 

227;    Irvine  v.  Irvine   (Ky.),  15  S.  Barlleld,   113  N.  Car.  230;   Thomp- 

W.  511;   12  Ky.  L.  Rep.  827;  Pearl  son  v.  Hoop,  6  O.   S.  480;   Case  v. 

V.  Lockwood   (Mich.)    (1900),  81  N.  Hall,   52   O.   S.   24. 

VV.  1087;  Harris  v.  Wright,  118  N.  62  Hoss    v.    Hoss,    140    Ind.    551; 

C.  422;   McCall  v.  McCall,   161   Pa.  Burdid  v.  Biirdis,  96  Va.  81. 

St.  412;  McFadden  v.  Hefley,  28  S.  63  McCall  v.  McCall,   161   Pa.   St. 

C.  317;  13  Am.  St.  Rep.  675.  412. 

61  Gingrich  v.   Gingrich,   146  Ind.  In  Kentucky  such   conditions  ara 

227  ;  Allen  V.  Allen,   121   N.  Car.  328,  treated  as  conditions  precedent;   Ir- 

criticising  Erwin  v.  Erwin,  115  N.  vine  v.  Irvine  (Ky.),  15  S.  W.  511; 

Car.   366.     So   a   condition   that  be-  12    Ky.    Law   Rep.    827;    Hopper   v. 

fore  devisee  takes  possession  of  the  Harrod,  Ky.    (1894),  24  S.  W.  870. 

realty  devised  to  him,  he  shall  pay  64  Richards    v.    Richards,    90    lo. 

a    certain    sum    to    his    sisters,    or  606. 

secure    the    payment   of    such    sum,  65  Seeley  v.   Hincks,   65   Conn.   1 : 

does   not   entitle   the   sisters   to   re-  Harris   v.   Wright,    118    N.   C.   422. 

tain  possession  of  the   realty  until 


802  LAW     OF     WILLS. 

should  remain  with  his  wife  and  nephew  until  the  death  of 
the  wife,  working  for  them,  they  should  have  each  fifty  acres 
of  land.  While  this  seems  to  have  been  treated  as  a  condi- 
tion precedent,  it  was  held  that  such  a  will  gave  the  slaves 
the  right  to  remain  upon  the  plantation,  to  use  the  land  de- 
vised to  them  without  rent,  and  that  their  devise  could  not  be 
defeated  by  ejecting  them  from  the  plantation  for  non-pay- 
ment of  the  rent,  or  by  insisting  that  tliey  leave  the  planta- 
tion, go  to  the  city  and  there  render  the  services  indicated.*^*^ 
Like  other  devises,  however,  a  devise  of  this  sort  may  be  void 
for  uncertainty.  Thus  a  devise  to  the  one  of  A's  sons  who 
should  live  on  the  land  devised,  and  support  certain  benefi- 
ciaries, was  held  to  be  void  for  uncertainty  where  the  evidence 
disclosed  that  A  had  several  sons,  and  did  not  disclose  which, 
if  any  of  them,  had  complied  with  the  conditions  of  the  de- 
vise.^^ 

These  conditions,  while  valid  as  far  as  the  necessity  for  pay- 
ment is  concerned,  may  be  otherwise  unenforceable.  Thus  a 
devise  to  A  was  upon  condition  that  he  paid  $80  per  acre  for  the 
land  devised  and  gave  a  mortgage  securing  payment.  A  en- 
tered into  possession  of  the  land  but  did  not  give  the  mortgage. 
It  was  held  that  his  interest  was  not  thereby  defeated,  since  tlie 
unpaid  purchase  money  was  a  lien  upon  the  realty  by  the 
provisions  of  the  will  itself.^^ 

§679.     Conditions  as  to  reformation  and  conduct  of  beneficiary. 

A  condition  that  the  estate  given  shall  not  pass  to  the  devi- 
see until  he  settles  down  and  marries,  or  reforms  from  in- 
temperate habits,  and  the  like,  is  held  to  be  valid.*^^  Such  con- 
ditions are  as  strictly  construed  as  others,  however.  Thus  where 
there  was  a  gift  over,  if  the  first  devisee  became  a  vagabond 
and  drunkard,  it  was  held  not  to  pass  where  he  became  a 
drunkard  and  not  a  vagabond.^*^ 

66  Harris  v.  Wright,  118  N.  C.  660;  Markham  v.  Hufford  (Mich.), 
422.  82  N.  W.  222 ;  Hawke  v.  Euyart,  30 

67  McFadden   v.   Hefley,   28    S.   C.  Neb.  149 ;  27  Am.  St.  Rep.  149. 
317,  13  Am.  St.  Rep.  675.  '"^  Forsyth  v.  Forsyth,  46  N.  J.  Eq. 

68  Hanes  v.  Hunger,  40  O.  S.  493.  400. 

69  Cassem    v.    Kennedy,    147    111. 


LAW     OF     WILLS.  803 

§680.     Conditions    as    to    presenting    claims    against    testator's 
estate. 

A  condition  that  a  devise  shall  be  void  if  devisee  presents  a 
bill  against  the  testator's  estate,  has  been  upheld  as  valid.'^^ 

Where  a  condition  provided  that  a  legacy  given  should  be 
forfeited  in  case  legatee  presented  a  claim  against  testator's 
estate  and  there  was  no  gift  over,  it  was  held  to  be  a  condition 
in  terrorem  only,  and  the  representation  of  a  valid  claim  is 
held  not  to  work  a  forfeiture.'^^ 

Where  a  condition  was  imposed  upon  a  life  estate  that  the 
interest  therein  should  cease  if  a  claim  held  by  some  one 
other  than  devisee  should  be  enforced,  it  was  held  that  the  in- 
terest of  the  life  tenant  was  not  ended  but  merely  suspended 
until  the  claim  was  satisfied  out  of  the  rents  and  profits  of  the 
life  estate.^^ 

A  will  provided  that  the  value  of  the  services  of  a  devisee 
should  be  added  to  the  property  given  him  by  the  will,  if 
such  claim  should  be  recovered  against  testator's  estate 
by  ''due  course  of  law,"  it  was  held  that  a  presentation 
of  the  claim  to  an  estate  and  the  allowance  by  the  court  was 
"due  course  of  law"  and  was  a  sufficient  compliance  with  the 
conditions  of  the  will.'^^ 

§681.     Conditions  in  restraint  of  marriage. 

The  validity  of  conditions  in  restraint  of  marriage  involves 
a  number  of  distinctions  upon  which  the  courts  are  not  en- 
tirely harmonious.  It  seems  well  established  that  a  condition 
in  restraint  of  a  second  marriage  of  testator's  widow  is  valid, 
and  upheld  by  the  courts."^^     So  a  condition  in  a  will  of  tes- 

Ti  Rockwell    V.    Smft,    59    Conn.  (P.O.)    (1895),  A.  C.  264;  64  L.  J. 

289.  p.  C.  N.  S.  49;    11  Rep.  423;   Giles 

72Vandevort's  Estate,  62  Hun  (N.  v.   Little,   104   U.   S.   291;    Helm  v. 

Y.),  612.  Leggett,    66    Ark.    23;     Bennett    v. 

73  Williams  v.  Jenkins    (1893),   1  Packer,    70    Conn.    357;    Collins    v. 

Ch.  700.  Burge   (Ky.),  1899;   47   S.  W.  444: 

7*  Knauss's    Estate,    148    Pa.    St.  Opel  v.   Shoup,   100  la.   407 :     Boyd 

265.  V.     Sachs.     78'   Md.    491  ;     Clark    v. 

75  Trew  V.  Perpetual   Trustee  Co.  Tennison.  33  Md.  85 ;  Nash  v.  Simp- 


804  LAW    OF    WILLS. 

tatrix  that  her  husband  shall  not  remarry  is  undoubtedly  val- 
idJ« 

The  doctrine  that  a  condition  in  restraint  of  a  second  mar- 
riage is  valid  is  not  limited  to  conditions  against  the  remar- 
riage of  the  surviving  spouse  of  the  testator.  Thus  a  con- 
dition avoiding  a  devise  if  testator's  widowed  daughter  should 
marry  again,  Avas  held  to  be  validJ''' 

Where  a  condition  in  restraint  of  a  first  marriage  is  sought 
to  be  imposed,  there  is  no  question  that  a  condition  in  general 
restraint  of  marriage  which  is  imposed  in  order  to  cause  the 
beneficiary  to  live  unmarried,  is  contrary  to  public  policy  and 
void.^^  Thus  a  condition  that  a  legacy  should  cease  if  the  leg- 
atee, testator's  niece,  should  cease  to  be  member  of  the  So- 
ciety of  Friends,  was  held  void,  there  being  no  gift  over,  where 
the  extrinsic  evidence  showed  that  there  were  only  three  un- 
married men  of  that  denomination  in  that  neighborhood,  and 
that  marriage  outside  of  the  church  forfeited  membership'^'* 

Eestraints  against  marrying  persons  belonging  to  specified 
classes  have  been  upheld,^^  and  so  have  restraints  against  mar- 
rying a  specified  individual.^^ 

Where  the  language  of  the  Mdiole  will  shows  that  testator's 
intention  was  to  provide  for  a  designated  beneficiary  as  long  as 
she  should  remain  single,  but  upon  her  marriage  he  expected 
her  husband  to  support  her,  and  for  that  reason  alone  limited 

son  78  Me.  142 ;  Knight  v.  Mahoney,  Beaumont,  3  Ves.  Jr.  89 ;  Mourning 

152  Mass.  523;  9  L.  R.  A.  573;  In  re  v.  Missouri  Coal  Mining  Co.,  99  Mo. 

Allen,    151    N.  Y.   243;    Redding  v.  320;  In  re  Denfield,  156  Massi  265; 

Rice,    171     Pa.    St.    301;    Nash    v.  Hogan    v.    Curtin,    88    N.    Y.    162; 

Simpson,  78  Me.  142;   Boyer  v.  Al-  Maddox  v.  Maddox,  11  Gratt.  (Va.), 

len,  76  Mo.  498;    Martin  v.  Seigler,  804. 

32    S.    C.    267;    Wooten    v.    House  79  Maddox  v.   Maddox,   11   Gratt. 

(Tenn.),    Ch.    App.    (1896);    36    S.  (Va.),   804. 

W.  932;  Duncan  v.  Philips,  3  Head.  so  Greene  v.  Kirkwood    (1895),   1 

(Tenn.),   415;    Lane  v.   Crutchfield,  Ir.    130;     (a    condition    against   de- 

3  Head.  452.  visees  marrying  a  man  "below  her 

76  Allen  V.  Jackson,  1  Ch.  Div.  social  station");  Hodgson  v.  Hal- 
399;  Stivers  v.  Gardner,  88  lo.  307.  ford,  11  Ch.  Div.  959. 

77  Herd  v.   Catron,  97  Tenn.   662.  si  Finlay  v.  King,  3  Pet.   (U.  S.), 
7sMoreley  v.  Rennoldson    (1895),       346;   Gi;aydon  v.  Graydon,  23  N.  J. 

1  Ch.  449;  12  Rep.  158  ;  Stackpole  v.       Eq.  229. 


LAW    OF    WILLS.  805 

the  gift  over,  such  limitation  is  held  not  to  be  void.^^  .At  one 
time  the  courts  upon  this  point  seemed  disposed  to  make  a  dis- 
tinction between  a  condition  subsequent  and  a  conditional  limi- 
tation, and  to  hold  that  if  the  devise  were  to  the  beneficiary 
until  the  event  of  her  marrying  and  then  over,  it  would  be  void, 
but  that  if  it  were  to  her  as  long  as  she  remained  unmarried, 
it  would  be  valid.^^  This  distinction  seems  by  modern  au- 
thority to  be  repudiated,  and  where  the  intention  of  the  testator 
is  clearly  to  support  the  beneficiary  until  marriage,  such  in- 
tention is  upheld,  whether  it  tends  to  a  form  of  a  condition 
subsequent  or  to  a  conditional  limitation.*^ 

A  condition  precedent  that  upon  marrying  with  consent  of 
trustee  an  additional  annuity  shall  be  given  to  testator's  son, 
is  held  to  be  valid.*^ 

Where  condition  in  restraint  of  marriage  is  a  condition 
precedent  to  the  vesting  of  the  estate,  it  is  held  by  some  author- 
ities to  be  valid.*® 

A  condition  in  a  will  by  which  an  inducement  is  offered  to  a 
married  j^erson  to  obtain  a  divorce,  or  to  live  separate  and 
apart  from  the  other  spouse,  is  contrary  to  public  policy,  and 
held  to  be  invalid.*'^  However,  where  the  husband  and  wife 
had  lived  apart  and  divorce  proceedings  were  pending  at  the 
date  of  the  will,  a  condition  that  certain  property  shall  vest 

82  Mann  V.  Jackson,  84  Me.  400 ;  that  conditions  precedent  in  re- 
16  L.  R.  A.  707 ;  Graydon  v.  Gray-  straint  of  marriage  were  always 
don,  23  N.  J.  Eq.  229 ;  Courter  v.  valid  in  case  of  a  devise  no  matter 
Stagg,  27  N.  J.  Eq.  305 ;  Hotz's  how  restrictive,  while  in  case  of  a 
Estate,  38  Pa.  St.  422;  Cornell  v.  bequest  they  were  valid  unless  in 
Lovett,  35  Pa.  St.  100;  Bruch's  general  and  unreasonable  restraint 
Estate,   185   Pa.   St.   194.  of  marriage.     In  this  case  a  clause 

83  Heath  v.  Lewis,  3  De.  G.  M.  &  revoking  a  prior  gift  to  any  of  tes- 
G.  954.  tator's   children  who  should   marry 

84  Jones  V.  Jones,  L.  R.  1  Q.  B.  into  the  family  of  A  was  held  valid, 
Div.  279 ;  Mann  v.  Jackson,  84  Me.  and  where  such  marriage  took  place 
400;  10  L.  R.  A.  707;  Bodwell  v.  before  the  death  of  testator  it  was 
Nutter,  63  N.  H.  446;  Morgan  v,  treated  as  a  condition  precedent.) 
Morgan,  41   N.  J.  Eq.  235.  87  Brown   v.    Peck,    1    Eden,    140; 

85 /n  re  Nourse  (1899),  1  Ch.  63;  Wrenn  v.   Bradley,   2  De  Gex  &  S. 

68  L.  J.  N.  S.  15.  49;    Conrad  v.   Long,   33  Mich.   78; 

86Ransdell  v.  Boston,  172  111.  439.  Ilawke  v.  Euyart,  30  Neb,  149;   27 

Phillips   v.    Ferguson,    85    Va.    509.  Am.  St.  Rep.    149. 
(In  the  case  last  cited  it  was  said 


806  LAW    or    WILLS. 

in  the  -husband  at  the  termination  of  the  life  estate,  if  he 
should  have  obtained  a  divorce  from  his  wife,  has  been  upheld 
as  valid.^^  And  where  there  was  a  devise  to  a  married  woman, 
the  income  to  be  paid  to  her  while  she  remains  married,  and 
the  principal  to  be  paid  to  her  upon  the  death  of  her  husband, 
or  upon  her  separation  from  him,  such  a  condition  is  not  void 
where  it  appears  from  the  whole  will  to  be  the  purpose  of 
the  testator  to  provide  an  annual  income  for  the  wife  as  long  as 
her  husband  is  supporting  her,  and  to  pay  the  principal  when 
bv  reason  of  the  cessation  of  such  support,  she  may  need  the  en- 
tire sum  for  her  maintenance.^^ 

§682.     Conditions  as  to  religious  belief. 

In  some  jurisdictions  conditions  avoiding  a  devise,  if  the 
devisee  should  not  be  a  member  of  a  certain  church,  or  avoid- 
ing a  devise  if  he  should  be  a  member  of  a  certain  church, 
have  been  held  to  be  contrary  to  public  policy  as  interfering 
with  the  liberty  of  conscience.^^  Thus  where  a  devise  to  rel- 
atives of  testator  was  to  be  avoided  if  they  should  cease  to  be 
members  of  the  Quaker  Church,  it  was  held  that  such  condi- 
tion was  void.^^ 

In  other  jurisdictions  these  conditions  seem  to  be  treated 
as  valid,  though  very  strictly  construed.^^  Thus  a  devise  to 
be  void  if  the  devisee  turns  Catholic,  and  after  his  majority 
acknowledges  himself  a  member  of  that  Church,  is  not  avoided 
by  secret  change  of  belief,  where  there  was  no  acknowledge- 
ment of  membership.^^     And  where  some  of  the  devisees  of 

88  Ransdell  v.  Boston,  172  111.  bequest  requiring  as  a  condition  of 
439,  citing  Cooper  v.  Remsen,  5  its  enjoyment  that  the  legatee 
Johns.  Ch.  459.  should    be    a    member    of    any    reli- 

89  Born  V.  Horstman,  80  Cal.  452 ;  gious  sect  or  denomination  as  di- 
5  L.  R.  A.  577 ;  Thayer  v.  Spear,  rectly  violative  of  ...  .  policy  and 
58  Vt.  327.  pregnant  with  evil  consequences." 

9oMaddox   v.   Maddox,   11    Gratt.  92  Laurence  v.   McQuarrie,   26   N. 

Va.    804.  S.   164;     McBride's  Estate,   152  Pa. 

91  Maddox   v.   Maddox,    11    Gratt.  St.  192. 

Va.   804.  93  Laurence  v,   McQuarrie,  26  N. 

The  court  said:     "I  regard  a  re-  S.    164. 
striction  imposed  by  the  terms  of  a 


807 

LAW    OF    WILLS. 

the  cla^,  in  a  devise  to  such  children  as  were  members  of  a 
given  church,  have  complied  with  the  conditions,  the  church 
can  not  object  if  some  of  the  children  were  not  members,  since 
the  church  would  not,  under  the  will  take  the  benefit  of  a 
failure  of  condition  in  such  case,  but  it  would^inure  to  those 
children  who  had  complied  with  the  conditions.^^ 

§683.     Conditions  against  contesting  will. 

The  validitv  of  conditions  imposed  by  a  will  against  contest- 
in-  the  validitv  of  the  will  or  interfering  or  trying  to  inter- 
fere with  the  administration  of  the  estate  or  with  the  interests 
of  the  other  beneficiaries,  is  a  question,  upon  the  details  of 
which  the  courts  are  by  no  means  unif oi-m. 

The  weight  of  authority  undoubtedly  is  that  where  there  is 
a  condition  against  disputing  the.  validity  of  a  will,  followed 
bv  a  gift  over  upon  the  performance  of  the  condition,  the  con- 
dition must  be  given  effect  ancMhe  beneficiary  who  contests 
loses  his  rights  under  the  will.^^  _ 

Thus  a  condition  attached  to  certain  legacies  that  legatees 
"acquiesce"  in  the  will  is  broken  by  attacking  the  devise  of  a 
specific  tract  of  realty  on  the  ground  that  it  belonged  to  tes- 
tator's wife««  In  such  cases,  however,  if  the  contest  is  success- 
ful  of  course  the  conditions  fall  with  the  rest  of  the  will. 

The  policy  of  allowing  such  a  condition,  where  there  is  prob- 
able cause  for  contesting  the  will,  is  unquestionably  a  bad  one. 
In  cases  of  fraud  and  undue  influence,  they  offer  a  most  effective 
means  of  terrorizing  the  heirs  and  next  of  kin  who  are  given  any 
substantial  benefits  under  the  will,  and  thus  preventing  them 
from  contesting  the  will.  Some  cases  have  sharply  challenged  the 
wisdom  of  enforcing  these  conditions  where  there  is  any  reason- 
able cause  for  contesting.  Where  there  is  no  gift  over  upon 
a  breach  of  condition,  the  authorities  are  not  harmonious  as 

..McBride's   Estate,   152   Pa.   St.       Schley,    2    Gill.    181;    ^1    A,n    De. 

415-  Bradford  v.  Bradford,  19  U. 
192. 

95  Smithsonian       Institution       v.       S.  54fi.  Tn«fUntion       v 

Meech,  169  U.  S.  398;   Morrison  v.  -  Smithsonian       Institution       v. 

Bowman,    29     Cal.     337;     Beall    v.       Meech,  169  L.  S.  398. 


808  LAW     OF     WILLS. 

to  the  validity  of  the  condition.  In  some  jurisdictions  it  13 
held  that  the  condition  is  valid  in  devises  of  land  where  there 
is  no  gift  over;^'^  but  that  it  is  invalid  in  bequests  of  person- 
alty, the  condition  being,  in  such  cases,  held  to  be  in  terro- 
rem.^^  A  residuary  clause  has  been  held  not  to  be  such  a  gift  over 
where  there  was  no  especial  provision  that  this  bequest  should, 
upon  the  happening  of  the  condition,  pass  into  the  residuum.^^ 

In  other  jurisdictions  the  validity  of  these  conditions  has  been 
assumed  whether  there  is  any  gift  over  or  not,  and  whether 
the  property  disposed  of  is  realty  or  personalty.-^ ^'^ 

These  conditions  are  strictly  construed.  Thus  where  the  condi- 
tion is  that  a  devise  shall  be  forfeited  if  the  devisee  opposes  the 
conditions  of  the  will,  such  devise  is  not  forfeited  by  his  filing  a 
bill  to  have  the  will  construed,^  ^^  nor  by  his  cross  examining 
at  probate,  and  filing  objections,  and  suing  executor  to  recover 
property  which  was  disposed  of  by  the  will.^*^^  However,  a 
beneficiary  under  such  a  conditon,  who  procures  and  obtains 
another  heir  to  institute  proceedings  to  contest  a  will,  for- 
feits his  interest  thereon.^ ^^ 

§684.     Conditions  repugnant  to  the  nature  of  the  estate  devised. 

The  law  recognizes  a  certain  number  of  classes  of  estates  ia 
real  property,  and  will  not  allow  the  creation  of  new  kinds 
of  estates,  nor  will  it  allow  a  testator  to  take  from  existing 
classes  of  estates  any  necessary  incident  thereto;  accordingly 
any  attempt  by  will  to  create  a  new  class  of  estate,  or  to  pass  a 
recognized  estate  without  certain  necessary  incidents,  is  a  nul- 
lity.^'^'^  Thus  a  gift  of  land  in  fee,  followed  by  a  provision  that 
devisee  shall  not  sell  this  property  during  his  life,  can  not 

97  Adams     v.     Adams      (C.     A.)  loo  Bradford    v.    Bradford,    19    0. 
C1892),  1  Ch.  3G9,  affirming  45  Ch.       S.  546. 

Div.    426.       (In    this    case    the   eon-  loi  Black  v.  Herring,  79  Md.  146. 

test  was  groundless  and  malicious,  102  in  re  Bratt,   32  N.  Y.     Supp. 

and  the  forfeiture  was  enforced.)  168. 

98  Donegan  v.  Wade,  70  Ala.  501 ;  103  Donegan  v.  Wade,  70  Ala.  501. 
Fifleld  V.  Van  Wyck,  94  Va.  557.  io4    Law  v.  Douglas,  107  la.  606. 

99Fifield   V.   Van   Wyck,    94    Va. 
557. 


LAW    OF    WILLS. 


809 


be  entirely  enforced,  since  the  restraint  upon  alienation  is  re- 
pugnant to  the  nature  of  the  estate  conveyed.     In  such  cases 
the  intention  to  pass  the  property,  being  the  paramount  in- 
tention of  testator,  is  enforced,  and  the  restraint  upon  alien- 
ation is  ignored,  and  held  void.^«"  Thus  a  condition  that  cer- 
tain property  devised  in  fee  shall  not  be  sold  until  the  oldest 
of  the  children  reaches  the  age  of  twenty-five,^"^  and  a  condi- 
tion that  certain  realty  devised  in  fee  should  not  be  sold,  mort- 
gaged or  encumbered  for  thirty  years,  was  held  void.^"^     So 
a  restraint  on  alienation  for  twenty-five  years,^"^  and  a  pro- 
hibition to  sell  or  mortgage  except  to  other  devisees  for  ten 
years  after  the  youngest  devisee  arrived  at  age,^°^  have  been 
held  void.ii"     g^iH  j^^ore  is  a  permanent  restraint  on  aliena- 
tion void.     Hence  attempts  to  devote  realty  to  permanent  uses 
which  are  not  charitable  in  their  nature,  is  void.^^^ 

Where  the  condition  forbids  the  sale  during  minority,   it 


105  In  re  Thomas,  30  Ont.  49 ; 
McRae  v.  McRae,  30  Ont.  54;  Pot- 
ter V.  Couch,  141  U.  S.  296;  Jones 
V.  Port  Huron  Engine,  etc.,  Co.,  171 
111.  502;  Hunt  v.  Hawes,  181  111. 
343;  Allen  v.  Craft,  109  Ind.  476; 
Conger  v.  Lowe,  124  Ind.  368;  Pel- 
lizzaro  v.  Reppert,  83  la.  497  ;  Hal- 
liday  v.  Slickler,  78  la.  388;  Mc- 
Nutt  V.  McComb  (Kan.)  (1899),  58 
Pac.  965;  Fristoe  v.  Latham,  — 
Ky.  —  (1896);  36  S.  W.  920; 
Ernst   V.   Shinkle    (Ky.),    1894;    26 

S.  W.  813;  In  re  Bartlett,  163  Mass. 

509 ;  Cushing  v.  Spalding,  164  Mass. 

287;   Mandleuaum  v,   McDonell,   29 

Mich.  78 ;  Todd  v.  Sawyer,  147  Mass. 

570;  DePeyster  v.  Machiel,  6  N.  Y. 

467 ;  Van  Horn  v.  Campbell,  100  N. 

Y.   287 ;    Kaufman   v.   Burgert,    195 

Pa.  St.  274 ;  Jauretche  v.  Proctor,  48 

Pa.   St.   466;   Naglee's  App.   33  Pa. 

St.   89;   Williams  v.  Leech,   28   Pa. 

St.  89;    In  re  Van  Horn,  18  R.  I. 

389;    Williams  v.  Herrick,  19  R.  I. 

197;    Zillmer  v.  Langduth,  94  Wis. 
607. 


Contra,  In  re  Bell,  30  Ont.  318 
(condition  against  disposing  of 
property  or  charging  it  except  by 
will  upheld.  Mortgage  forfeits  es- 
tate ) . 

106  Fowlkes  V.  Wagoner  (Tenn.), 
46  S.  W.  586;  Zillmer  v.  Laiid^'uth, 
94  Wis.  607. 

107  Jones  V.  Port  Huron  Engine, 
etc.,  Co.,  171  111.  502. 

108  Fowler  v.  Duhme,  143  Ind.  248. 
100  Anderson    v.    Cary,    36    O.    S. 

506. 

110  On  the  same  point  are  Mandle- 

baum   V.   McDonnell,    29   Mich.    78; 

Conger    v.    Lowe,    124    Ind.    368;    9 

L.  R.  A.  165;  DePeyster  v.  Michiel, 

6    N.    Y.    467;    57    Am.    Dec.    494; 

Roosevelt  v.  Thurman,  1  Johns.  Ch., 

220. 

iii/n  re  Bartlett,  163  Mass.  509; 
Cushing  V.  Spalding,  164  Mass.  287  ; 
Williams  v.  Hertick,  19  R.  I.  These 
cases  were  attempts  to  create  per- 
manent trusts  in  realty  for  the  ben- 
efit of  testator's  heirs  or  other  ben- 
eficiaries. 


810  LAW    OF    WILLS. 

has  been  said,  in  some  jurisdictions,  to  be  a  valid  condition. 
It  maj  be  questioned,  however,  whether  under  the  statutes 
authorizing  a  guardian,  upon  proper  proceedings  had  for  that 
purpose,  to  sell  real  estate  where  necessary  to  support  a  minor, 
any  condition  may  prevent  this  power  of  sale. 

Where  the  restraint  upon  alienation  is  not  general,  but  is 
partial,  the  authorities  are  not  harmonious  as  to  the  extent  "X) 
which  conditions  will  be  upheld.  Courts  also  treat  as  void 
a  provision  that  the  devisee  to  whom  a  fee  has  passed  can  not 
dispose  of  the  same  without  the  consent  of  some  designated 
person.-^ ^^  A  similar  view  is  taken  of  a  provision  that  upon 
the  sale  of  a  fee  by  the  devisee,  certain  siuns  were  to  be  paid 
to  designated  persons  out  of  the  proceeds.^  ^^ 

It  not  infrequently  happens  that  a  testator  disposes  of  prop- 
erty in  fee,  and  then  attempts  to  provide  for  the  disposition  of 
the  property  after  the  death  of  the  devisee  in  fee  simple.  A  pro- 
vision of  this  sort  is  to  be  carefully  distinguished  from  the 
cases  where  a  fee  simple  is  cut  down  to  a  life  estate  by  a  devise 
over  after  the  death  of  the  first  taker.-^^'*  The  distinction  be- 
tween the  two  classes  of  cases,  though  not  strongly  marked,  is 
well  recognized  by  the  courts.  If  the  devise  over  upon  the 
death  of  A  is  intended  to  pass  the  entire  property,  it  is  evi- 
dent that  the  testator  contemplated  that  A  should  take  only 
a  life  estate,  without  any  power  of  disposing  of  his  property 
for  a  longer  term  than  his  own  life.^^^  But  where  the  devise 
over  upon  the  death  of  A  shows  that  A  was  vested  ^^dth  a  fee 
simple  estate,  and  that  testator  wishes  him  to  have  such  an 
estate,  but  to  direct  the  course  of  its  descent  upon  his  death, 
the  limitation  over  after  the  fee,  is  repugnant  to  the  nature  of 
the  estate  and  void.^^®     So  an  absolute  devise  of  land  for  life 


ii2McRae  v.  McRae,  30  Ont.  Rep.  725;   Ewing  v.  Barnes,  156  111.  61; 

54;   Muhlke  v.  Tiedemann,   177   111.  Wolfer    v.    Hemraer,    144    111.    554; 

606.  Mulvane  v.  Rude,  146  Ind.  476;  N. 

113 /m    re   Elliott    (1896),    2    Ch.,  E.   659;     Law  v.  Douglass,   107   la. 

353.  606;    Barth   v.    Barth,   —   Ky.   — ; 

114  See  Sec.  574.  38   S.   W.   511;    Ramsdell  v.   Rams- 

115  See  See.  574.  dell.  21  Me.  288;  Backus  v.  Presby- 

116  Eowman    v.    Oram,    26    N.    S.  terian  Association,  77  Md.  50;    Ide 
318;   Howard  v.   Carusi,    109  U.   S.  v.    Idc,    5    Mass.    500;    Burbank    v. 


oil 

LAW    OF    WILLS. 


prevents  the  subsequent  creation  of  a  spendthrift  trust,  so  that 
the  life  estate  of  the  devisee  can  not  be  encumbered  or  made 
liable  for  any  of  his  debts.^^^  So  a  direction  in  a  will  that  the 
devisee  shall  devise  his  fee  simple  estate  to  certain  named 
persons  is  void  for  repugnancy.^  ^«  So  a  condition  that  if  de- 
visee does  not  dispose  of  his  property  in  any  way  during  his 
lifetime,  it  shall  pass  to  certain  named  persons,  is  held  to  be 
void  "«  So  conditions  annexed  to  a  fee  simple  estate,  that  the 
beneficiaries  shall  not  dispose  of  it  by  will  to  certain  named  per- 
sons, have  been  held  to  be  void.^^^  A  similar  view  is  taken  ot 
absolute  gifts  of  personalty  by  will  with  restriction  as  to 
the  methods  of  disposing  of  the  same.^^i 

Where  the  will  provides  that  in  case  of  alienation,  or  attempt- 
ed alienation,  the  interest  of  the  first  takes  shall  cease,  and  this 
has  been  put  in  the  form  of  a  limitation,  the  validity  of  such 
a  condition  has  been  upheld  in  some  cases.^^^ 

Where  the  estate  given  by  will  is  less  than  a  fee  simple,  as 
a  life  estate  or  an  estate  for  years,  there  is  also  a  lack  of  har- 
mony as  to  the  extent  to  which  conditions  in  restraint  of  alien- 
ation should  be  upheld.i^^^  But  such  conditions  are  strictly  con- 
Whitney,  24  Pick.  146;  Burleigh  v.  122  Metcalfe  v.  Metcalfe  (C.  AJ 
Clouoh  52  N.  H.  267;  Benz  v.  Fa-  (1891),  3  Ch.  1,  reversing  L.  R. 
bian"54  N    J    Eq.   615;   McClellan      4.3  Ch.  D.  633.    /n  re  Porter  (1892). 

V  Lurcher,  45  N.  J.  Eq.  17;  Annin  3  Ch.  481  (a  condition  forfeiting  a 
v  Vandoren,  1  McCart.  135;  Arm-  devise  of  a  reversion  upon  assign- 
strong  V.  Kent,  1  Zab.  509;  Hoxsey       ing   or    attempting    to    assign     held 

V  Hoxsey,  10  Stew.  Eq.  21;  Hall  v.  valid  and  the  interest  forfeited  by 
Palmer  87  Va.  354;  11  L.  R.  A.  an  attempted  but  ineffective  post- 
610-  Robinson  V.  Ostendorff,  38  S.  nuptial  settlement).  However,  an  in- 
^    gg  tesest  is  not  forfeited  by  a  previous 

*  117  Erhrisman  v.  Sener,  162  Pa.  nuptial  contract  to  settle  upon  the 
St  577  :  Bank  of  Charleston  v.  Dow-  wife  of  a  devisee  any  further  sums 
line.   52  S.  Car.  345.  which   he   might   receive   under    the 

iTs  Good  V.  Fitchthorn,  144  Pa.  St.      will  of  his  mother.    In  re  Crawshay 
287-   Johnson  v.  Johnson,  48   S.  C.       (1891),  3  Ch.  176. 
408-  26  S    E    7'>2  123  Eutterfield  v.  Reed,  160  Mass. 

119  L  Ve  Gardner,  140  N.  Y.  122;       361    (a  restraint  on  alienation  of  a 
Clay  V  Wood,  153  N.  Y.  134.  Hfe  estate  held  invalid ) .  Roberts  v. 

ifo  Ludlow  V.   Bunbury,   35   Beav.       Stevens,  84  Me.   325    (a  restriction 

36;      Barnard     v.     Bailey,     2Har.       on  alienating  a  trust  estate  for  life 

iDen    56-  Morse  V.  Blood,  68  Minn.      held    valid).    Pans    v.    Wmterburn, 

7I  6   Ohio   C.   C.   635    (a   restraint   on 


121  Wilson  V.  Turner,  164  HI.  398.      alienation   upheld). 


812  LAW     OF     WILLS. 

strued.  Thus  a  life  estate,  conditioned  to  end  on  its  being  sold, 
encumbered  or  permitted  to  be  sold  for  taxes  by  the  life  tenant, 
is  not  forfeited  by  a  sale  on  execution.^  ^"^  Thus  where  the  life  es- 
tates were  granted  upon  a  condition  that  the  life  tenants  should 
reside  on  the  property  given,  such  conditions  have  been  held 
void.^^^  In  other  jurisdictions  they  have  been  held  to  be 
valid.126 

Where  some  collateral  benefit  is  to  cease  if  the  beneficiaries 
remove  from  the  land  devised  for  life,  the  courts  are  not  in 
accord  as  to  the  validit}^  of  the  condition.^ ^''' 

A  gift  of  the  income  of  certain  property  to  testator's  wife 
for  life  was  restrict-ed  by  the  condition  that  she  should  not  dis- 
pose of  any  of  such  income  by  will.  The  condition  was  held 
void.^^^ 

The  English  and  Canadian  authorities,  while  in  some  con- 
fusion, are  much  more  liberal  to  restraints  on  alienation  than 
the  United  States  authorities.  Conditions  against  alienation 
except  by  w^ill  have  been  upheld.^  ^^  And  while  conditions 
not  to  sell  except  to  a  member  of  the  family  have  been  up- 
held,^ ^^  a  better  reasoned  line  of  cases  holds  that  such  re- 
straints on  alienation  are  invalid.^ ^^ 

A  devise  to  a  bishop  and  his  successors  to  use  as  he  shall 
deem  of  the  greatest  advantage  to  his  church  in  his  diocese 
is  not  a  restraint  of  alienation.^ ^^ 


124  Henderson  v.  Harness,  176  111.  ices  oi  certain  persons  should  be 
302 ;  Paris  v.  VVinterburn,  6  Ohio  rendered  to  the  beneficiaries  only 
C.  C.  635.  as  loni^  as  they  lived  upon  the  plan- 

125  Eastman's  Settled  Estate,  68  tation  devised  to  them,  it  was  held 
L.  J.  Ch.  N.  S.  122:  Howell  v.  to  be  valid.  Harris  v.  Wright,  118 
Fatry,  50  N.  J.  Eq.  265.  N.  C.  422;    so  In  re  Smith   (1899), 

126  Lowe    V.    Cloud,    45    Ga.    481;  1  Ch.,  331. 

Marston   v.    Marston,    47    Me.    495;  i28  Levy's  Estate,  153  Pa.  St.  174. 

Harrison  v.  Foote,  9  Tex.  Civ.  App.  i29 /n  re  Bell,  30  Ont.  Rep.,  318; 

576.  In  re  Winstanley,  6  Ont.  Rep.,  315. 

127  Thus  a  condition  that  an  an-  i so  Doe  v.   Pearson,  6  East..   173; 
nuity  be  given  to  a  widow  for  life  In  re  Macleay,  L.  R.  20  Eq.  186. 
should    be   reduced    if    she    removed  isi  Attwater      v.      Attwater,      18 
from    premises    devised    to    her    for  Beav.    330;    In   re    Rosher,    26    Ch. 
life  was  held  to  be  void.     Eastman's  Div.  801. 

Settled  Estate,  68  L.  J.  Ch..  N.   S.  i32  Lamb  v.   Lynch,   56  Xeb.    135. 
122.     Where  a   condition  that  serv- 


LAW    OF    WILLS.  ^^^ 


§685.     Conditions   against  bankruptcy. — Spendthrift  trusts. 

Conditions  precedent  that  an  estate  shall  not  vest  until  the  de- 
visee has  discharged  certain  obligations,  are  held  to  be  valid.^^s 
A  condition  that  the  devise  shall  vest  when  the  devisee  shall 
discharge  ''his  present  liabilities"  is  held  to  refer  to  the  lia- 
bilities which  were  in  existence  at  the  date  of  the  death  of 
the  testator.i^^ 

Where  testator  evidently  intends  that  the  estate  shall  vest 
free  from  a  trnst  when  the  beneficiary  named  can  no  longer 
be  held  upon  his  debts,  the  fact  that  testator  specified  a  dis- 
charge from  the  creditors  or  by  proceedings  in  bankruptcy 
will  not  limit  the  release  of  beneficiary  from  his  indebted- 
ness to  these  two  means.^^^ 

Conditions  subsequent  that  interest  shall  cease  upon  the 
bankruptcy  of  the  devisee  are  upheld  as  valid.^^*'  Where  such 
conditions  are  imposed,  the  property  is  held  forfeited  where 
the  bankruptcy  exists  at  any  time  during  which  the  gift  vests 
or  is  payable,  even  though  subsequently,  before  the  gift  is 
actuallv  paid,  the  devisee  is  able  to  pay  off  his  debts  and  ter- 
minate" the  bankruptcy  ;^^'  or  although  the  petition  in  invol- 
untary bankruptcy  was  dismissed  upon  appeal.^  ^^ 

A  condition  that  the  interest  of  the  first  taker  shall  cease  and 
that  there  shall  be  a  gift  over  to  another  upon  the  taking  of 
propertv  devised  on  execution,  subjecting  it  to  the  debts  of 
the  devisee,  and  the  like,  are  also  held  to  be  valid.^so  And 
when  the  condition  was  that  the  trust  should  terminate,  if  the 
propertv  were  taken  on  execution,  it  was  held  that  the  appoint- 
ment of  a  receiver  to  collect  the  rents  and  profits  was  a^tak- 
ing  on  execution  within  the  meaning  of  the  condition.^^^ 

133  St.  John  V.  Dann,  66  Conn.  way  (1895),  2  Ch.,  235;  13  Rep. 
401 ;  Johnson  V.  Gooch,  116  N.  Car.  536.  ,,  ,n  ^^ 
64-  In  re  Ames  (R.  D,  46  Atl.  i37  Metcalfe  v.  Metcalfe  (C.  A.) 
47  (1891),  3  Ch.,  1. 

134  St.  John  V.  Dann,  66  Conn.  i38  Jn  re  Loftus-Otway  (1895),  2 
4QJ  Ch.,  235:  13  Rep.,  536. 

13.  Zn  re  Ames,    (R.  D,  46   Atl.  i30  Brandon  v.  Robinson    18  Ves. 

„  Jr.  429 ;  Thornton  v.  Stanley,  55  U. 

130  Metcalfe   v.   Metcalfe    (C.    A.)       S.  199. 
(1891)     3  Ch     1 ;   Zn  re  Loftus-Ot-  i40  Blackmann    v.    Fish     (C.    A.) 

(1892),  3  Ch..  209. 


814  LAW    OF    WJLLS. 

Where,  however,  the  condition  on  which  the  estate  was  tj- 
end.  was,  in  case  it  should  be  ''subjected  or  sought  to  be  sub- 
jected by  process  of  law"  to  the  debts  of  devisee,  it  was  held 
that  obtaining  judgment  and  issuing  an  execution  thereon  which 
was  returned  "no  property"  was  not  such  an  attempt  to  take  by 
process  of  law,  although  the  judgment  was  a  lien  upon  the  land 
of  the  judgment  debtor  in  the  county.^ '*^ 

.  These  conditions  are  not  especially  favored  in  construction. 
Thus  where  there  was  a  condition  that  on  the  death  of  the  life 
tenant  an  estate  should  pass  to  testator's  son,  unless  at  such 
time  he  should  be  under  "any  legal  disability  in  consequence 
whereof  he  would  be  hindered  in,  or  prevented  from,  taking 
the  same  for  his  own  personal  and  exclusive  benefit,"  it  was 
held  that  while  an  act  of  bankruptcy  might  avoid  his  estate 
within  the  meaning  of  the  gift,  a  judgment  against  him  for  a 
debt  would  not.^^^ 

Where  the  legal  estate  was  devised  for  ninety-nine  years,  it 
was  held  that  a  condition  that  the  property  devised  should 
not  be  taken  for  the  debts  of  the  devisee,  was  void.^'*' 
Whether  it  is  possible  to  devise  equitable  interests  in  such  a 
way  that  the  beneficial  interest  of  the  cestui  que  trust  can  not 
be  reached  by  his  creditors  is  a  question  upon  which  the 
the  courts  are  not  unanimous.  In  the  absence  of  re- 
straining statutes  the  great  weight  of  American  authority  is 
that  if  testator  expresses  his  intention  in  apt  and  suitable  lan- 
guage, it  is  possible  to  create  such  an  estate  in  equity  as  to 
exclude  the  creditors  of  the  beneficiary  from  reaching  such 
estate  and  subjecting  it  to  their  claims.^^^ 

141  Bryan  v.  Dunn,  120  N.  Car.  36.  his  debts.  This  is  simply  impos- 
es/n  re  Carew  (1896),  2  Ch.,  sible." 
311.  1*4  Nichols  V.  Eaton,  91  U.  S. 
i43Hobbs  V.  Smith,  15  0.  S.  419;  716;  St.  John  v.  Dann,  66  Conn. 
Wallace  v.  Smith,  2  Handy,  78.  401 ;  Leavitt  v.  Beirne,  21  Conn.  1 ; 
The  same  will  was  involved  in  both  Barnett  v.  Montgomery,  79  Ga.  726 ; 
cases.  In  these  cases  there  was  no  Steib  v.  Whitehead,  111  111.  247; 
gift  over.  The  court  said:  "The  Meek  v.  Briggs,  87  la.  610;  Pope 
general  object  of  the  testator  seems  v.  Elliott,  8  B.  Mon.  56;  Roberts  v. 
to  have  been  to  give  the  devisee  the  Stevens,  84  Me.  325 ;  Smith  v.  Tow- 
absolute  ownership  of  the  land  and  ers,  69  Md.  77;  Wemyss  v.  \Vhite, 
yet  shield   it   from  the  pavment  of  159    Mass.    484;     Sears    v.    Choate, 


LAW     OF     WILLS. 


815 


The  form  of  devise  necessary  to  express  this  intention  m 
such  a  way  that  the  courts  will  give  it  etiect  is  a  question  upon 
which  there  is  no  unanimity  of  authority.  The  English  de- 
cisions recognize  and  enforce  such  intent  only  when  there  is 
a  provision  that  upon  the  insolvency  of  the  beneficiary  and  the 
attempt  of  his  creditors  to  reach  his  equitable  interest,  such 
interest  shall  thereupon  cease  and  shall  pass  to  another  spe-- 
cified  beneficiary;  or  when  the  estate  created  is  a  married  wo- 
man's separate  equitable  estate;  or  where  the  trustees  have 
a  discretionary  power  to  give  or  withhold  the  gift.^^^ 

The  extent  to  which  the  English  rule  is  enforced  m  this 
country  is  a  matter  of  doubt.     In  some  states  the  view  is  taken 
that  where  there  is  no  discretionary  power  given  to  trustees 
and  no  limitation  over  upon  the  insolvency  of  the  beneficiary, 
the  interest  of  the  beneficiary  can  be  reached  by  his  credit- 
ors}'^  In  other  states  the  addition  of  an  express  provision  that 
the  estate  shall  not  be  transferred  by  beneficiary  during  his 
lifetime,  or  that  it  shall  not  be  taken  for  his  debts,  is  sufficient 
to  prevent  such  estate  from  being  taken  for  his  debts;'''  and 
in  some  jurisdictions  the  intention  of  testator  that  the  gift 
shall  not  be  liable  for  the  debts  of  the  beneficiary  may  be  m- 


146  Mass.  395;   Broadway  National 
Bank    v.    Adams,    133    Mass.    170 
43   Am.   Rep.,   504;    Leigh   v.   Har 
risen,  69  Miss.  923;  18  L.  R.  A.  49 
Lampert    v.    Haydel,    96    Mo.    439 
2  L.  R.  A.  113;  9  Am.  St.  Rep.  358 
Partridge  v.  Cavender,  96  Mo.  452 
Handy's   Estate,    1G7    Pa.    St.    552 
Seitzinger's  Estate,  170  Pa.  St.  500 
Baeder's   Estate,    190    Pa.    St.    606 
Jourolmon   v.  Massengill,  86  Tenn 
81;   Patten  v.  Herring,  9  Tex.  Civ 
App.  640 ;  Wales  v.  Bowditch,  61  Vt, 
23;    Barnes    v.    Dow,    59    Vt.    530 
Garland    v.    Garland,    87    Va.    758 
13  L.  R.  A.  212;   24  Am.  St.  Rep. 
682. 

145  Cooper  V.  Wyatt,  5  Madd.  482 ; 
Shee  V.  Hale,  13  Ves.  Jr.  404 ;  Bran- 
don  V.   Robinson,   18   Ves.   Jr.   429 


The  creditors  of  the  beneficiary  can 
not  reach  a  legacy  which  the  ex- 
ecutor has  discretion  to  pay  or 
withhold.  Brinker  v.  Speer,  9  W. 
L.  B.  292. 

140  Thornton  v.  Stanley,  55  O.  S. 
199.  (In  this  case  a  gift  of  income 
to  A  for  life  "for  her  education  and 
support  during  the  life"  of  A,  was 
held  subject  to  her  debts.  Some  im- 
portance was  given  to  the  fact  that 
the  income  was  fixed  at  $300  per 
year,  as  a  minimum.) 

147  Sears  v.  Choate,  146  Mas.s. 
395;  Sparhawk  v.  Cloon,  125  Mass. 
263;  Lampert  v.  Haydel,  96  Mo. 
439;  2  L.  R.  A.  113;  9  Am.  St.  Rep. 
358:  Seitzinger's  Estate,  170  Pa. 
St.  500. 


816 


LAW    OF    WILLS. 


ferred  from  the  fact  that  the  gift  is  expressly  stated  to  he  for 
the  support,  maintenance  and  the  like,  of  the  beneficiary.^*'^ 

"Where  a  devise  is  for  the  support  and  maintenance  of  A 
and  his  family,  the  attempt  to  subject  A's  interest  to  the  pay- 
ment of  his  debts  is  open  to  the  further  objection  that  it  is 
verv  difficult  to  sever  A's  share  from  that  of  his  family.  The 
weight  of  authority  is  that  this  can  not  be  done.^'*^ 

An  absolute  devise  of  income  to  one  for  life,  however,  does 
not  of  itself  show  testator's  intention  to  create  a  spendthrift 

trust.^^'^ 

Where  the  trustees  have  discretionary  power  to  pay  a  cer- 
tain fund  to  A  on  his  arriving  at  a  certain  age,  which  fund  is 
to  be  paid  out  of  the  principal  settled  on  a  spendthrift  trust 
in  favor  of  A,  it  was  held  that  when  A  reached  the  age  speci- 
fied and  the  trustees  decided  not  to  pay  such  sum  to  A,  it 
thereupon  became  fixed  as  part  of  such  spendthrift  trust  and 
could  not  be  reached  by  A's  creditors.^ ^^ 

Even  when  the  trustees  have  discretion  in  paying  the  income 
to  the  beneficiary,  the  income,  when  once  paid  over,  may  be 
seized  for  the  debts  of  the  beneficiary  like  any  other  prop- 
ertv.152 


148  Meek  v.  Briggs,  87  lo.  610; 
Leigh  V.  Harrison,  69  Miss.  923; 
18  L.  R.  A.  49. 

Contra,  Raynolds  v.  Hanna,  55 
Fed.  783;  Thornton  v.  Stanley,  55 
O.  S.  199,  affirming  7  Ohio  C.  C. 
455,  citing  Slattery  v.  Wason,  151 
Mass.   266. 

149  Godden  v.  Crowhurst,  10  Sim. 
642;  Hill  v.  McRea,  27  A\-a.  175; 
St.  John  V.  Dann,  66  Conn.  401. 
In  one  federal  case,  ho^vever,  such 
severance  was  permitted.  Raynolds 
V.  Hanna,  55  Fed.  783. 

130  Kingman  v.  Winchell,  —  Mo. 
— ;  20  S.  W.  296. 

isiEaeder's  Estate,  190  Pa.  St. 
614. 


On  application  for  instructions  by 
a  trustee  who  was  authorized  to  pay 
tlie  principal  to  A  in  such  sums  as 
trustee  should  think  proper  and  if 
A  did  not  make  proper  use  of  the 
money,  to  furnish  him  with  support 
merely,  it  was  held  that  on  A's  ar- 
riving at  the  age  of  sixty  and  saving 
a  thousand  dollars  out  of  an  an- 
nual income  of  eight  hundred,  the 
trustee  should  pay  him  the  principal 
even  though  A  had  failed  in  one 
or  two  business  enterprises.  Ped- 
rick  v.   Pedrick,   50  N.  J.   Eq.   479. 

152  Kruse  v.  Baeder,  31  W.  L.  B. 
112. 


L,AW    OF    WILLS.  817 

§686.     Conditions  as  to  use  of  property. 

Conditions  that  if  the  property  given  by  will  shall  cease  to 
be  used  for  the  purpose  for  which  it  is  given  the  interest  of 
the  beneficiary  shall  cease,  have  been  upheld  where  the  gift 
was  for  a  charitable  use.^^^ 

Where  a  devise  was  made  to  a  town,  with  a  provision  that 
the  income  from  whatever  source  obtained  should  be  kept  as  a 
perpetual  fund  guaranteed  by  the  to\vn  with  G%  forever,  it 
was  held  that  the  gift  was  not  conditioned  upon  the  town's 
granting  that  rate  of  interest;  nor  could  the  gift  be  forfeited 
by  reason  of  the  town's  borrowing  the  fund  on  interest.^^'* 

A  devise  of  land  to  a  to^vn  for  "a  common"  was  held  to  give 
the  land  subject  to  the  same  public  uses  as  the  original  com- 
mon, and  there  was  no  implied  condition  against  using  part 
of  it  for  a  school  building.^ ^^ 

§687.     Implied  condition  against  murder  of  testator  by  devisee. 

The  question  whether  devisee,  who  murders  testator  in  order 
to  take  under  the  will,  thereby  forfeits  his  rights  under  the 
will  as  upon  a  breach  of  an  implied  condition,  is  fortunately 
a  question  which  is  rarely  presented  for  adjudication  and  upon 
which  precedents  are  few. 

Where  the  question  has  been  presented  for  adjudication,  it 
was  held  that  the  devisee  by  such  conduct  forfeits  his  rights 
under  the  will  and  takes  nothing.^ ^^      This  doctrine  applies 

153  Keith    V.    Scales,    124    N.    Car.  should  be  built  thereon   within   one 

497.  year.)      In  re  Van  Horn,   18   R.   I. 

(It  has  been  held,  however,  that  389. 

where  a  house  was  devised  for  use  154  Quincy    v.    Attorney    General, 

as  a  parsonage,  with  the  condition  160  Mass.  431. 

that  if  it  should  be  allowed  to  de-  155  Newell  v.  Hancock,   67  N.   H. 

eay   for   one  year,    it   should   go   to  244. 

the  town,   it  was  held  that  under  ise  Lundy  v.  Lundy,  24  Can.  S.  C. 

a    subsequent    statute    the    specific  650,  reversing  McKinnon  v.  Lundy, 

property  might  be  sold  and  the  pro-  21  Ont.  App,  560;  Riggs  v.  Palmer, 

ceeds   reinvested   in   property  to   be  115  N.  Y.  506.  The  grant  UT^on  which 

used  for  the  same  purpose,  provided  this  holding  rests  is  expressed  by  the 

that    if    vacant    land    were    bought  Court    of    Appeals    of    NewYork    in 

with     the     proceeds     a     parsonage  Riggs  v.  Palmer,  supra.   "Here  there 


818 


LAW    OF    WILLS. 


alike  whether  the  devisee  is  guilty  of  murder,^ ^^  or  of  man- 
slaughter only.^^^  The  forfeiture  of  a  devise  in  such  a  case 
may  be  declared  by  the  court  of  equity  in  a  suit  to  have  the  will 
cancelled  and  annulled  in  so  far  as  it  conveys  property  to  the 
murderer,^ ^'^  but  it  does  not  render  the  devise  void.  Hence 
the  question  of  the  title  of  the  devisee  can  not  be  raised  collater- 
ally in  a  suit  by  an  heir  to  partition  land  which  was  devised  to 
the  murderer.^  ^° 


was  no  certainty  that  this  murder- 
er would  survive  testator  or  that 
the  testator  would  not  change  his 
will,  and  there  was  no  certainty  that 
he  would  get  this  property  if  nature 
was  allowed  to  take  its  course.  He, 
therefore  murdered  testator  ex- 
pressly to  vest  himself  with  an 
estate.  Under  such  circumstances 
what  law,  human  or  divine,  will  al- 
low him  to  take  the  estate  and  en- 
joy the  fruits  of  his  crime?"  In 
this  case  testator  had  made  a  will 
in  favor  of  his  grandson,  and  was 
contemplating  revising  it.  The 
grandson  poisoned  his  grandfather 
in  order  to  prevent  such  revocation. 
The  court  said  that  to  allow  him  to 
take  under  such  circumstances 
"would  be  a  reproach  to  the  juris- 
diction of  our  state,  and  an  offence 
against  public  policy." 

157  Piggs  V.  Palmer,  115  N.  Y. 
500. 

158  Lundy  v.  Lundy,  24  Can.  S.  C. 
P.  fi.iO. 

iB9Riggs  V.  Palmer,  115  N.  Y. 
500. 

160  Ellerson  v.  Westcott,  148  N.  Y. 
149.  This  was  a  partition  suit 
brought  by  a  disinherited  heir  to 
partition  real  estate  devised  to  the 
murderer.  The  question  arose  on 
his    asking    leave    to    amend    so    as 


to  show  that  the  beneficiary  poi- 
soned the  testator  in  order  to  ob- 
tain the  benefit  of  the  will.  The 
Supreme  Court  held  that  this  ques- 
tion might  be  thus  raised.  Ellerson 
V.  Westcott,  88  Hun.  389,  was  re- 
versed by  the  N.  Y.  Court  of  Ap- 
peals in  Ellerson  v.  Westcott,  148 
N.  Y.  149.  The  court  gave  its  reason 
for  refusing  to  allow  this  question 
to  be  presented  in  a  partition  suit 
on  the  ground  that  if  the  facts  al- 
leged in  the  assignment  were  true  "a 
court  of  equity  will  intervene  and 
deprive  her  (the  murderer)  of  the 
benefit  of  the  devise.  It  would 
defeat  the  fraud  by  staying  her 
hand  and  enjoining  her  from  claim- 
ing under  the  will.  But  the  devise 
took  effect  upon  the  death  of  the 
testator;  and  transferred  the  legal 
right  and  title  given  her  by  the 
will.  The  relief  which  may  be  ob- 
tained against  her  is  equitable  and 
injunctive.  The  court  in  a  proper 
action,  will,  by  forbidding  the  en- 
forcement of  the  legal  right,  pre- 
vent her  from  enjoying  the  fruits 
of  her  iniquity.  It  will  not  and  can 
not  set  aside  the  will  that  is  valid 
but  it  will  act  upon  the  facts  aris- 
ing subsequent  to  its  execution,  and 
deprive  her  of  the  use  of  the  prop- 
erty." 


LAW     OF     WILLS.  °^^ 

§688.     Miscellaneous  conditions. 

Testator  devised  land  to  one  for  life  and  provided  that  if, 
at  his  death,  there  shonld  be  pending  litigation  concerning  the 
title,  devisee  should  receive  other  lands  in  lieu  thereof.  At 
testator's  death  litigation  was  pending  between  testator  and  de- 
visee concerning  the  title.  It  was  held  that  devisee  took  the 
lands  originally  devised,  the  condition  being  inserted  merely 
to  prevent  his  receiving  land  under  a  doubtful  title. 

A  devise  to  a  college  upon  condition  that  it  change  its  name, 
failed  where  the  trustees  had  instructed  the  president  and 
secretary  to  obtain  the  legislation  necessary  to  allow  it  to 
change   its  name,  but  the  legislature   had  not  changed  such 

name.^^^ 

A  condition  that  a  legacy  to  a  minor  should  be  revoked  if 
any  attempt  were  made  "at  law  or  otherwise"  to  withdraw 
him  from  the  control  of  the  executors,  is  not  broken  by  a  sur- 
render of  such  child  by  the  executors  tx)  his  father  under  di- 
rection .of  their  attorney.^*'^ 

A  bequest  to  a  son  of  testator's  wife  by  her  former  marriage 
upon  condition  that  the  said  wife  should  take  under  the  will, 
and  waive  her  rights  under  the  statutes,  was  held  to  be  valid.^*^* 

The  testator  devised  a  tannery  to  his  son  A,  and  a  mill  race 
to  his  son  B,  A  to  have  the  privilege  of  taking  water  from  the 
mill  race  and  B  to  have  the  privilege  of  having  A  tan  every 
year  two  hides  which  B  should  furnish.  It  was  held  that 
this  privilege  was  personal  to  B,  and  that  A  did  not  have  to  tan 
hides  for  remote  heirs  or  alienees.^  ^^ 

A  legacy  to  the  executor,  naming  him,  "over  and  above  (his) 
legal  fees  and  compensation"  was  held  to  be  on  condition  that 
he  qualify  as  executor.^^^     So  a  gift  conditional  on  the  con- 

161  riatt  V.  WithiTif?ton,  121  N.  Y.  lee  Harris  v.  Harris  (Ky.),  49  S. 
138,  reversing  47  Hun,  558.  W.  106 ;  20  Ky.  L.  Rep.  1313,  rehear- 

162  Merrill  v.  Wisconsin  Female  ing  refused,  50  S.  W.  533  ;  20  Ky.  L. 
College,  74  Wis.  415.  Rep.    inil.      (Hence    the   condition 

103  White's  Estate,  163  Pa.  St.  was  broken  when  such  pe^^on  ^did 
388 


not   qualify    and    made   no    further 
effort  to  qualify  than  moving  to  re- 
voke   the    appointment    of    an    ad- 
2,4       '   ~~  ministrator     (inn     testamento     an- 


164  Carr's  Estate,  138  Pa.  St.  352.       effort  to  qualify  than  moving  to  re- 
i65Mosser  v.  Lesher,   154  Pa.  St.       voke    the    appointment    of    an    ad- 


820  LAW    OF    WILLS. 

tinned  success  of  a  certain  business  should  not  be  paid  where 
the  profits  in  the  years  following  testator's  death  do  not  average 
one  twentieth  of  the  profits  for  the  year  immediately  preced- 
ing his  death,  and  the  profits  for  the  ten  years  following  his 
death  would  pay  about  one-eighth  of  the  conditional  legacies.^  ®^ 

nexo,  which  motion  was  overruled  le?  Patterson's  Estate,  173  Pa.  St. 

and  no  appeal  was  taken.)      Com-      185. 
pare  with  Sec.  673. 


LAW     OF     WILLS.  821 


CHAPTER  XXXI. 

POWERS. 


§689.     Definition. — Creation  of  power  of  sale. 

A  power  is  "an  authority  whereby  a  person  is  enabled  to 
dispose  of  an  interest  in  real  estate  vested  in  himself  or  an- 
other." ^ 

While  a  power  is  often  given  in  connection  with  an  interest 
in  realty,  such  as  a  life  estate  or  an  interest  as  trustee,  this 
is  not  necesarily  the  case.  From  its  definition  it  will  be  seen 
that  a  power  does  not  itself  confer  any  estate  upon  the  donee 
of  the  power.^ 

A  power  of  sale  may  be  conferred  by  will  without  the  em- 
ployment of  any  technical  words.  Any  expression  of  testator's 
intention  to  confer  upon  the  designated  persons  the  power  to 
dispose  of  testator's  property  by  deed  of  conveyance  will  be 
sufficient.^     Thus  a  power  of  sale  is  often  implied  from  a  di- 

1  Hadley  v.  Hadley,  147  Ind.  423.  was  held  that  a   general   power  of 

2Bennalack  v.  Richards,  116  Cal.  sale  to  executors  vests   the  fee  in 

405 ;  Todd  v.  Wortman,  45  N.  J.  Eq.  them. 

•jno  3  Lee  V.  Simpson,  134  U.  S.  572; 

It  has   heen   held,   however,   that  Smith  v.  Mclntire,  83  Fed.  Rep.  456. 

power  to  the  executors  to  "apportion  A  power  of  disposition  given  by  a 

and  distribute"  certain  realty  vests  gift  of  property  to   testator's  wife 

the  leoal  title  to  such  realty  in  them  "during  her  natural  life   (she,  how- 

as  trustees  until   such  distribution.  ever,  first  disposin-  of  a  sufficiency 

Nimmons  v.  Westfall,  33  O.  S.  213;  to  pay  my  just  debts"). 

and  in  Williams  v.  Burrows,  4  W.  Chase  v.  Cartwright,  53  Ark.  358. 

L   J    527    (Ohio  Supreme  Court),  it  (Power  to  convey  given  by  a  power 


822 


LAW    OF     WJLLS. 


rection  to  executors  or  trustees  to  divide  property,  where  from 
the  nature  of  the  property  or  the  context  of  the  will  it  is  evi- 
dent that  a  division  in  specie  is  either  impossible  or  is  not  con- 
templated by  testator.^ 

An  implied  j)ower  of  sale  does  not  extend  any  further  than 
the  necessity  from  which  the  power  arises.^  A  power  of  sale 
of  realty  may  also  be  implied  from  a  direction  that  some  part 


to  executors  to  dispose  of  property 
■devised  to  them  in  trust  as  they 
think  best  for  the  support  of 
minors. ) 

Stoff  v.  McGinn,  178  111.  46;  Mul- 
ligan v.  Lamb,  178  111.  130.  (Pow- 
er of  sale  given  by  a  devise  of  the 
whole  estate  to  executor  with  direc- 
tion to  equalize  advancements  and 
divide  equally  among  the  beneficia- 
ries.) 

Trimble  v.  Lebus,  —  (Ky.)  — ;  22 
S.  W.  329;  15Ky.  L.  R.  85;  Bailey 
v.  Fisher,  —  Ky.  — ,  1896,  38  S.  W. 
140.  (A  power  of  sale  given  by  a  de- 
base to  testator's  son  A  with  a  pro- 
vision that  the  other  children  should 
have  an  equal  part  out  of  the  pro- 
ceeds of  the  lands.) 

Fink  v.  Leisman,  —  (Ky. )  — ,  38 
S.  W.  6 ;  Hughes  v.  Rhodes,  —  Ky. 
—  (1896),  37  S.  W.  489;  Hill  v. 
Bean,  86  Me.  200. 

Seeger  v.  Leakin,  76  Md.  500; 
Hughes  v.  Bank,  86  Md.  418.  (A 
power  of  disposition  given  by  a  di- 
rection that  certain  bank  stock 
ishould  be  transferred  to  A  "in  her 
own  name  to  use  the  interest  there- 
of as  long  as  she  may  live,  and  at 
her  death  to  be  equally  divided 
^mong  her  children.") 

Stein  V.  Stein,  79  Md.  464.  (A 
power  of  sale  implied  from  a  direc- 
tion to  hold  property  upon  separate 
trust  where  such  holding  is  impos- 
sible without  a  sale.) 

lasigi  v.  lasigi,  161  Mass.  75 ; 
Lovejoy  v.  McDonald,  59  Minn.  393. 


(A  power  of  sale  of  land  implied 
from  a  power  to  pay  debts,  funeral 
expenses,  together  with  a  power  to 
make  deeds  which  should  be  neces- 
sary therefor.) 

Ness  V.  Davidson,  45  Minn,  424; 
Tomkins  v.  Miller.  —  N.  J.  Eq.  —  27 
Atl.  484.  .  (A  power  of  sale  implied 
from  a  power  to  distribute,  where 
the  only  projjerty  to  be  distributed 
consisted  of  one  building,  a  sale 
being  necessary  to  make  the  distri- 
bution possible.) 

Story  V.  Palmer,  46  N.  J.  Eq.  1 ; 
Cruikshank  v.  Parker,  52  N.  J.  Eq. 
310;  Lindley  v.  O'Reilly,  50  N.  J.  L. 
636,  7  Amt.  St.  Rep.  802 ;  Cahill  v. 
Russell,  140  X.  Y.  402. 

Pennsylvania  Company  for  Insu- 
rance V.  Leggate,  166  Pa.  St.  147. 
(A  power  to  sell  implied  from  a 
power  to  convert  unproductive 
land.) 

Bilderbach  v.  Boyce,  14  S.  Car. 
528. 

4  Stoff  V.  McGinn,  178  111.  46; 
Mulligan  v.  Lambe,  178  111.  130;  la- 
sigi V.  lasigi,  171  Mass.  75;  Thomp- 
kins  V.  Miller,  —  N.  J.  Eq.  — ,  27 
Atl.  484;  Story  v.  Palmer,  46  N.  J. 
Eq.  1;  Wilson  v.  Wilson,  46  N.  J. 
Eq.  321;  Parker  v.  Seeley,  56  N.  J. 
Eq.  110;  Mimms  v.  Delk,  42  S.  C. 
195. 

5  Smith  V.  Hall,  20  R.  I.  170.  (An 
implied  power  of  sale  to  equalize 
certain  shares  does  not  extend  any 
further  than  sufficient  to  equalize 
such  share.) 


LAW     OF     WILL3. 


823 


of  testator's  property,  it  not  appearing  clearly  what,  was  to 
be  sold  and  paid  upon  testator's  debts,  where  the  debts  ex- 
ceeded the  amount  of  the  personal  property.*^  And  where  the 
devisees  may  take  personalty  but  can  not  take  realty,  as  where 
they  are  non-resident  aliens,  it  was  held  that  a  general  power 
of  sale  in  the  executor  imposes  on  him  a  duty  to  convert  realty 
into  money  and  distribute.'^  A  power  of  sale  was  implied 
from  a  devise  of  the  use  of  certain  realty  "until  the  sale  and 
conveyance  of  said  premises  by  my  executor  as  hereinafter 
provided,"   there  being  no   subsequent  provision.^ 

A  power  of  sale  expressly  conferred  to  pay  specific  legacies 
and  the  residuum  given  after  paying  them,  was  held  not  to  be 
revoked  by  subsequent  revocation  of  the  residuary  clause,  and 
the  substitution  therefor  of  specific  gifts.^  A  power  to  divide 
property  among  the  beneficiaries,  where  the  division  may  be 
made  in  specie,  does  not  impliedly  give  a  power  of  sale;^'-* 
and  where  the  land  is  by  statute  liable  for  the  payment  of 
the  debts  of  testator,  a  devise  of  land,  after  the  payment  of 
debts,  does  not  impliedly  create  a  power  of  sale.^^ 

A  direction  to  gather  the  estate  into  one  fund  does  not  of 
itself  empower  the  executor  to  sell  the  realty.^  ^ 

A  power  to  executors  to  lease  lands  may  be  implied  from  a 
gift  of  a  third  of  the  net  rents,  after  deducting  costs  of  repair, 
expenses  of  collection  and  the  like,  followed  by  a  power  of 
sale  to  executors,  though  .no  specific  provision  is  inserted  di- 
recting the  executors  to  lease  the  realty. -^^ 

6  Schroeder  V.  Wilcox,  —  Neb. — ;  rejected  the  words  "as  hereinafter 
57  N.  VV.   1031,  provided.") 

7  Greenwood  v.  Greenwood,  178  111.  »  Secgar  v.  Leakin,  76  Md.  500. 
387,  citing  Hunt's  Appeal,  105  Pa.  lo  Gammon  v.  The  Gammon  The- 
St.  128;  Penfield  v.  Tower,  1  N.  D.  ological  Seminary,  153  111.  41;  Pot- 
216;  Cook  v.  Cook,  20  N.  J.  Eq.  375;  ter  v.  Ranlett,  116  Mich.  454. 
Frazer  v.  United  Presbyterian  n  Crudup  v.  Holding,  118  N.  Car. 
Church,  124  N.  Y.  479;  Lent  v.  222;  24  S.  E.  7. ;  Worley  v.  Taylor, 
Howard,  89  N.  Y.  169;    Re  Gantert,  21  Or.  589. 

136  N.  Y.  106.  12  Smalley  v.  Snialley,  54  N.  J.  Eq. 

Cahil   V.   Russell,    140  N.  Y.  402.       591. 
(To  reach  this  conclusion  the  courts  i3  Peirce  v.  Peirce,  195  Pa.  St.  417. 


824  LAW     OF     WILLS. 

§690.     How  a  power  to  devise  may  be  created. 

A  donee  of  a  power  may  be  given  power  to  dispose  of  his 
property  by  his  will  to  take  effect  upon  his  death.  This  power 
may  be  given  by  such  general  words  as  give  authority  to  dis- 
pose of  the  property  described,  if  the  grantee  of  the  jDOwer 
should  deem  expedient.^'*  A  power  to  dispose  of  property  by 
will  may,  of  course,  be  given  in  specific  terms,  such  as  a  devise 
of  property  to  any  one  Avhom  A  should,  by  will,  direct.^ ^  A 
power  of  disposition  by  will  is  not  given,  however,  by  a  life 
estate  coupled  with  power  to  sell.^^  This  is  especially  true 
where  the  power  of  sale  is  evidently  for  the  exclusive  benefit 
of  the  life  tenant  to  furnish  support  and  maintenance  for 
him.i^ 

A  power  given  by  will  to  A  to  dispose  of  certain  realty  by 
his  will,  may  be  exercised  by  A's  will  even  if  A  dies  before 
the  donor  of  the  power. -^^ 

§691.     Construction  of  powers. 

A  power  of  sale  for  a  specific  purpose,  such  as  for  the  pay- 
ment of  testator's  debts  and  for  the  support  of  the  donee  of 
the  power,  does  not  confer  a  general  power  of  sale  for  all 
purposes  ;^^  therefore,  a  power  of  sale  to  pay  debts  of  testator 
can  not  be  exercised  if  the  personal  property  undisposed  of 
is  sufiicient  to  pay  the  debts.''^''  And  such  a  power  of  sale  can 
not  be  exercised  where  the  debts  of  testator  are  barred  by  the 
Statute  of  Limitations.^^ 

i4Burbank  v.  Sweeney,  161  Mass.  L.   3f.3 ;     affirmed   01   N.   J.   L.   687, 

490.      (And   under   such   a  gift  the  citing  Herring  v.  Barrow,  L.  R.  13 

power  to  devise  is  not  taken  away  Ch.  Div. 

by    a    provision    that,    if    the   donee  i^  Keniiston  v.  Mayhew,  169  Mass. 

should  not  dispose  of  the  property  166;   Ford  v.  Ticknor,  109  Mass.  276. 

during  her  lifetime  it  should  go  to  is  Condit  v.  De  Hart,  —  N.  J.  — ; 

a  designated  person.)  40  Atl.  776. 

15  Krause   v.   Klucken,    13.5  Mass.  i9  Griffin  v.  Griffin.  141  111.  373. 
482;    OIney  v.  Balch,  154  Mass.  318;  20  S^veeney  v.  Warren,   127  N.  Y. 
Austin   V.    Oakes,    117    N.    Y.    577;  426;     24  Am.   St.  Rep.  468;     Seeds 
Thurston  v.  Bissel,  13  O.  C.  C.  293;  v.  Burke,  181  Pa.  St.  281. 

7  O.  1).  235.  21  Hemphill    v.    Pry,    183    Pa.    St. 

16  Wooster  v.  Fitzgerald,  61  N.  J.       593. 


LAW     OF    WILLS.  825 

A  power  to  sell,  to  provide  for  the  support  of  testator's 
widow  in  her  lifetime,  and  for  her  burial,  with  a  provision  that 
the  trustees  shall  divide  the  residue  of  the  proceeds,  does  not 
authorize  a  sale  for  the  mere  purpose  of  dividing  the  prop- 
erty."^ 

Where  an  express  power  of  sale  is  given,  but  the  purpose  for 
which  it  is  to  be  used  is  not  specified,  it  is  held  to  be  a  power 
of  sale  in  order  to  pay  the  proceeds  to  the  devisees  in  lieu  of 
the  devise,^^  and,  therefore,  such  a  power  of  sale  is  not  re- 
pugnant to  the  devise  of  tlie  property  in  fee.^* 

A  power  of  appointment  among  certain  persons  impliedly 
gives  a  power  to  make  advances.^^  A  power  specifically  given 
to  make  advancement  on  marriage  is  exhausted  by  an  advance- 
ment made  at  that  time,  and  can  not  be  further  exercised  by 
making  advancement  thereafter."*" 

Where  it  appears  from  the  will  that  testator's  intention 
was  to  allow  the  donee  of  the  power  to  select  out  of  a  given 
class,  he  can  not  appoint  those  not  members  of  the  class.^'^ 
Ordinarily,  however,  a  power  to  divide  among  a  given  class, 
as  testator's  children,  gives  the  donee  of  the  power  a  right  to 
use  his  own  discretion  as  to  the  proportions  which  each  will 
receive,  but  does  not  allow  him  to  disinherit  any  one  of  them 
absolutely.^* 

A  power  of  apportionment  which  is  given  in  terms  to  indicate 
that  the  proportions  are  to  be  left  to  the  discretion  of  the  donee 
of  the  power  is  limited  by  a  subsequent  provision  that  the 
shares  of  the  children  are  to  be  made  equal.^^ 

22  Hammond  v.  Conkright,  47  N.  J.  27  Huber  v.  Free,  5  O.  C.  D.  537 ; 
Eq.  447.                                                            Horwitz  v.  Norris,  49   Pa.  St.  213. 

23  Ness  V.  Davidson,  45  Minn.  424.  28  Hatchett  v.  Ilatchett,  103  Ala. 

24  Sneer  v.  Stutz,  93  lo.  62  (dis-  556:  Clay  v.  Smallwood,  100  Ky. 
tinguishing  Halliday  V.  Strickler,  78  212;  Faloon  v.  Flannery,  74  Minn, 
lo.  388.);  Mellen  v.  Mellen,  139  N.  38;  Wright  v.  Wright,  41  N.  J. 
Y.  210.  Eq.    382;    Thrasher   v.    Ballard,    35 

2n  Franke    v.    Auerbach,    72    Md.  W.  Va.  524. 

580;  In  re  Hocking  (C.  A.)    (1898).  29  McCamant  v.  Nuckolls,  85  Va. 

2    Ch.    567.  333. 

26 /n  re  Croft,  162  Mass.  22. 


826 


LAW     OF     WiLL8.\ 


Where  the  executors  are  given  uncontrolled  powers  ©f  ap- 
pointment, they  may  appoint  for  themselves.^'^ 

A  power  to  sell  and  convey  if  given  to  life  tenants  may  be 
exercised  by   a   partition   by   agreement  among   themselves. ^^ 

A  power  given  for  a  specific  purpose  exists  until  the  accom- 
plishment of  such  purpose.^^ 

In  a  devise  to  executors  to  sell  realty  and  to  divide  the  pro- 
ceeds in  four  shares,  one  of  which  was  to  be  held  during  the 
life  of  the  beneficiary,  the  power  of  sale  existed  after  divi- 
sion of  the  realty  into  four  shares.^^ 

A  power  of  sale  to  be  exercised  under  specific  contingencies 
can  not  be  exercised  unless  tJiose  contingencies  exist.^'*  Thus 
a  power  to  sell  under  direction  of  the  probate  judge  could  not 
be  exercised  by  a  sale  without  such  direction.^^  And  where 
power  of  sale  of  certain  described  property  under  specific  con- 
tingencies is  given,  it  is  not  enlarged  by  a  subsequent  general 
power  of  sale  of  testator's  property.^® 


Higginson    v.    Kerr,    30    Ont. 


62. 


•■ii  O'Rourke  v.  Sherwin,  156  Pa, 
St.  285. 

32  Johns  Hopkins  University  v. 
Middleton,  76  Md.  186.  (A  devise 
in  trust  for  testator's  children  to 
terminate  when  each  should  reacli 
the  age  of  thirty,  with  power  of 
sale  to  make  a  division  of  the  prop- 
erty between  the  children,  was  held 
to  confer  a  power  which  lasted 
after  the  first  child  reached  the  age 
of  thirty.)  Hallum  v.  Silliman,  78 
Tex.  347.  (A  direction  that,  upon 
the  arrival  of  the  eldest  son  at 
majority,  the  balance  of  the  prop- 
erty left  after  the  exercise  of  a 
power  of  sale,  the  proceeds  to  be 
devoted  to  the  support  and  educa- 
tion of  the  children,  should  be  di- 
vided, was  held  to  create  a  power 
of  sale  for  the  education  of  the 
minor   children  which   did  not  ter- 


minate   with    the    arrival    of    the 
eldest    son    at    majority.) 

34  Petit  V.  Flint,  etc.,  Ry.  Co. 
114  Mich.  302.  (A  power  to  sell 
land  after  it  was  platted  does  not 
authorize  the  exercise  of  sale  before 
it  is  platted.)  Mersman  v.  Mers- 
man,  136  Mo.  244.  (A  power  to 
sell  a  homestead  when  none  of  tes- 
tator's unmarried  children  desire 
to  reside  there,  does  not  authorize 
a  sale  to  reinvest  the  proceeds  in 
another  dwelling  to  be  used  as  a 
homestead  by  such  children.) 

35  Bates  V.  Leonard,  99  Mich. 
296;    58   N.   W.   311. 

36  Petit  V.  Flint,  etc.,  Ry.  Co. 
114  Mich.  362.  (A  power  to  sell 
certain  real  estate  when  surveyed 
and  platted  can  not  be  exercised 
before  survey.)  So  Rice  v.  Tav- 
ernier,  8  Minn.  248 ;  Mersman  v. 
Mersman.     136    Mo.    244. 


LAW     OF     WILLS. 


827 


When  the  contingencies  have  been  complied  with,  however, 
the  power  of  sale  may  be  exercised.^^ 

A  power  of  sale  in  a  certain  time  is  not  destroyed  by  failure 
to  exercise  it  within  the  time  limited.^^ 

Where  a  power  of  sale  is  given  solely  as  a  means  of  ac- 
complishing some  purpose  which  the  law  will  not  permit,  the 
power  itself  is  invalid.^*^  However,  an  absolute  power  of  sale, 
given  without  any  reference  to  its  purpose,  is  not  avoided  by 
the  fact  that  the  disposition  of  its  proceeds  may  be  in  part  in- 
valid.^« 

A  power  to  executor  to  mortgage  testator's  realty,  the  pro- 
ceeds to  be  used  to  pay  testator's  debts,  is  not  prejudicial  co 
the  rigths  of  the  creditors  and  is  valid."* ^  kSuch  power  may  be 
implied  and  heed  not  be  expressedly  given.^^  On  the  other  hand, 
a  life  estate  to  testator's  widow,   with   a  power  to  sell   real 


37  Harp  V.  Wallin,  93  Ga.  811. 
{A  power  to  sell  lands  in  case  de- 
visee saw  fit  to  send  testator's 
widow  to  an  insane  asylum  may  be 
exercised  validly,  and  will  pass 
good  title  if  in  good  faith  where 
the  devisee  decides  to  send  testa- 
tor's widow  to  an  asylum  and  gets 
an     order     adjudging     her     insane, 

even  though   she  may  not  actually 
be    sent. ) 

38  Fahnestock  v.  Fahnestock,  152 
Pa.  St.  50 ;  Marsh  v.  Love.  42  N".  T. 
Eq.  112:  Hale  v.  Hale,  137  Maas. 
168. 

39 /«  re  Piercey  (1898),  1  Ch. 
565 ;  67  L.  J.  Ch.  N.  S.  297 ;  78 
Law  T.  Rop.  277 ;  Dana  v.  Mur- 
ray, 122  N.  Y.  G04 ;  Petit  v.  Flint, 
etc.,  Ry.  Co.  114  Mich.  362.  (In 
the  above  cases  the  power  of  sale 
was  void  as  given  in  order  to  carry 
out  a  scheme  which  involved  an  in- 
valid restraint  of  alienation.)  Hn- 
idekoper  v.  Perry,  14  O.  C.  C.  68; 
7  Ohio  Dec.  326. 


40  Pearson's   Estate,   98   Cal.   002. 

41  Aimes  v.  Holderbaum,  44  Fed, 
224. 

42 /n  re  Bellinger  (1898),  2  Ch. 
534;  67  L.  J.  Ch.  N.  S.  508  (a  pow- 
er to  trustees  to  lease  the  premises 
pending  a  sale,  and  to  expend 
money  necessary  to  improve  them 
so  that  they  can  be  leased  autho- 
rizes them  to  mortgage  the  prop- 
erty in  order  to  raise  such  money ) . 
Faulk  v.  Daahiell,  62  Tex.  642,  50 
Am.  Rep.  542 ;  Lardner  v.  Will- 
iams, 98  Wis.  514  (power  to  tes- 
tator's WH^ow  to  carry  on  a  busi- 
ness, and  to  hold  the  property  by 
the  same  right  as  testator  had 
done,  together  with  an  express 
pow^r  to  sell,  gives  her  the  pow<?r 
to  mortgage  the  property.  The 
court  expressly  declined,  in  this 
c>^se,  to  decide  whether  a  simple 
power  of  sale  would  include  a  pow- 
er to  mortgage). 


828 


LAW    OF    WILLS. 


estate  and  pay  testator's  debts,  does  not  give  her  authority 
to  mortgage  more  than  her  life  interest.^ ^ 

The  weight  of  authority  apparently  is  that  power  to  sell 
and  convey  does  not  carry  with  it  the  power  to  mortgage.'*'* 
A  power  to  sell  and  convey  real  estate  to  pay  testator's  debts 
can  not  be  exercised  by  a  conveyance  to  one  of  the  heirs  who 
is  to  mortgage  it  to  secure  money  for  the  executors  and  then 
reconvey  it  to  the  executors  subject  to  the  mortgage.^^ 

A  power  given  to  dispose  of  property  in  some  specified  way 
can  not  be  validly  exercised  in  an  entirely  different  way.'*^ 
Thus  a  power  to  dispose  of  property  by  will  can  not  be  validly 
exercised  by  deed.^'^ 

A  power  to  distribute  after  a  life  estate  "by  cash  sale  or 
division"  does  not  give  a  power  to  confirm  a  lease  made  by 
the  life  tenant.'**  A  power  of  sale  can  jiot  be  exercised  by 
an  exchange.^^ 

A  restriction  of  power,  whether  to  one  who  is  merely  a  donee 


43  Columbia  Ave.,  etc.,  Co.  v. 
Lewis,  190  Pa.  St.  558  (in  this  case 
the  mortgagee  knew  that  the 
money  was  raised  in  order  to  en- 
able testator  to  carry  on  a  busi- 
ness ) . 

44  Hoyt  V.  Jaques,  129  Mass. 
286;  Arlington  State  Bank  v.  Paul- 
sen, 57  Neb.  717;  but  see  same 
case,  80  N.  W.  263,  in  which,  on 
rehearing,  the  judgment  in  57  Neb. 
717  was  set  aside  on  the  ground  of 
estoppel,  without  apparently  mod- 
ifying the  provisions  of  the  text , 
Ferry  v.  Laible,  31  N.  J.  Eq.  566: 
Bloomer  v.  Waldron,  3  Hill,  361 ; 
Quisenberry  v.  Watkins  Land 
Mortgage  Company,  92  Tex.  247 ; 
qixestion  left  undecided  in  Lardner 
V.  Williams,  98  Wis.  514.  In  Penn- 
sylvania, however,  it  is  held  that  a 
general  power  of  sale  includes  a 
power  to  mortgage:  Zane  v.  Ken- 
nedy, 73  Pa.  St.  182. 

45  Arlington  State  Bank  v.  Paul- 
sen, 57  Neb.  717;  but  see  same  case 


in  80  N.  W.  263,  in  which  on  re- 
hearing the  devisees  and  general 
creditors  were  held  to  be  estopped 
to  deny  the  validity  of  the  mort- 
f^ao'es. 

46  Wooster  v.  Fitzgerald,  61  N.  J. 
L.  368;  affirmed,  61.  N  J.  L.  687. 

47Gaskins  v.  Finks,  90  Va.  381 
( in  this  case  it  was  held  that  thi.-i 
was  not  even  a  defective  exercite 
of  a  power  which  equity  would  aid, 
but  was  no  exercise  at  all ) .  In 
Franke  v.  Auerbach,  72  Md.  580, 
it  was  held  that  a  gift  to  A  for 
life,  with  a  power  to  indicate  by 
appointment  which  of  the  testator's 
children  should  take  and  in  what 
shares  implies  if  the  donee  of  the 
power  wishes  so  to  do,  a  power  to 
convey  to  a  child  of  testator's  by 
M^ay    of    advancem.ent. 

48  Johnson  v.  Granthan,  104  Ga. 
558. 

49  Taylor  v.  Galloway,  1  Ohio, 
232. 


LAW    OF    WILLS. 


829 


of  a  power,  or  to  one  who  is  also  a  trustee,  is  not  held  to  ex- 
tend to  the  disposition  of  property  after  the  purpose  for  which 
the  power  was  created  is  at  an  end.^^ 

Whether  a  power  of  sale  terminates  with  other  rights  given 
by  the  will  or  whether  it  may  be  exercised  independently  of 
them,  is  entirely  a  question  of  the  intention  of  testator.  A 
power  given  solely  for  a  designated  purpose  can  not  be  exer- 
cised after  that  purpose  has  ceased.^ ^ 

Power  to  dispose  of  the  income  indefinitely  is  held  to  in- 
clude power  to  dispose  of  the  principal.^^ 

Where  the  power  is  to  be  exercised  in  the  personal  discre- 
tion of  the  donee  of  the  power,  such  discretion  can  not  be  con- 
trolled.^^ 

The  donee  of  a  power  sometimes  attempts  to  exercise  the 
power  so  as  to  obtain  some  advantage  from  the  bene- 
fiiciary  of  such  power.  Where  the  power  is  exercised  upon  such 
conditions,  it  is  treated  as  fraudulent  and  a  nullity  ;^^  but 
where  the  power  is  exercised  only  in  the  hope  that  the  bene- 
ficiary will  provide  for  others,  without  any  express  agreement 
to  that  effect,  the  gift  is  valid.^=^ 

A  power  clearly  given  is  not  limited  except  by  clear  lan- 


50  Attorney  General  v.  Newberry 
Library,  150  111.  229;  51  111. 
App.  166  (in  this  case  a  restric- 
tion upon  a  power  of  making  leases, 
to  leases  for  twenty  years,  was 
held  to  apply  only  to  the  power  of 
executors  during  distribution,  and 
not  to  the  power  of  the  ultimate 
beneficiaries)  ;  Harvard  College  v. 
Weld,  159  Mass.   114. 

51  Heard  v.  Read,  171  Mass. 
.374  (a  power  of  sale  which,  from 
the  context,  was  evidently  given 
for  the  purpose  of  reinvestment 
during  a  trust  ends  with  the  termi- 
nation of  the  trust) .  ( On  the  other 
hand  when  the  power  of  sale  is  in- 
dependent and  for  other  purposes, 


it  will  not  be  terminated)  ;  Cot- 
ton v.  Burkelman,  142  N.  Y.  160 
(a  power  to  a  life  tenant  to  sell 
and  reinvest  as  she  might  deem 
best  for  the  benefit  of  the  remain- 
derman does  not  terminate  with 
the  death  of  the  remainderman). 

^>-^  In  re  L'Herminier  (1894),  1 
Ch.  675;  Johnson  v.  Childs,  61 
Conn.   06. 

53  Beers  v.  Narramore,  61  Conn. 
13. 

54 /rt  re  Perkins  (1893),  1  Ch. 
283  (a  devise  to  A  if  h6  would 
resign  certain  benefits  under  the 
will)  ;    3  Rep.  40. 

55  In  re  Crawshay,  L.  R.  43  Ch. 
D.  615. 


830  LAW     OF     WILLS. 

guage.^^  Thus  a  direction  to  convert  certain  real  estate  into 
other  property  at  "schedule  prices"  was  held  to  be  an  absolute 
power  of  sale,  the  price  being  advisory  only.^^ 

§692.     Who  may  exercise  power. 

Where  a  power  of  sale  is  clearly  given,  but  the  will  does 
not  provide  who  is  to  exercise  it,  the  omission  may  be  sup- 
plied by  construction.  Thus  if  the  context  of  the  will  shows 
that  the  executors  are  to  receive  and  expend  the  proceeds  of 
the  sale,  it  is  held  that  the  power  of  sale  is  given  to  them.^* 

"Where  a  testator  directs  that  his  real  estate  shall  be  sold 
and  the  proceeds  of  the  sale  are  to  be  disbursed  or  distributed 
by  the  executors,  the  power  to  sell  is  an  implication  of  law."  ^^ 
But  a  gift  in  trust  for  the  use  of  the  children  of  testatrix 
for  seven  years,  providing  that  the  property  might  be  sold 
within  such  time  if  a  majority  of  the  children  should  elect, 
does  not  confer  a  power  of  sale  upon  the  trustee.  "The  legal 
estate  in  the  property  here  devised  is  clearly  vested  in  the  chil- 
dren of  the  testatrix,  and  they  can  exercise  control  over  the 
transfer  of  title."  ^^  While  if  the  proceeds  are  to  be  expended 
by  trustee,  the  power  of  sale  may  be  exercised  by  such  trus- 
teV*5i 

Where  no  interest  or  estate  is  given  to  the  donee,  and  dis- 
cretionary power  is  given  to  several  in  such  a  way  as  to  show 
that  their  united  discretion  is  relied  upon  by  testator,   it  is 


56  Pope    V.    Sullivan,    156    Mass.  Collier   v.   Grimesey,    36    0.    S.    17; 
585;    Cochran   v.    Elwell,   46   N.   J.  Wood  v.  Hammond,   16  R.  I.   98. 
Eq.  333.  59  Ogle  v.  Rejmolds,   75  Md.   150, 

57  Ford   V.    Ford,   80   Mich.   42.  quoted  in  Porterfield  v.  Porterfield, 
ssRathbone  v.  Hamilton,  4  App.  85  Md.   663. 

D.   C.   475 ;    Van   Brocklin's   Estate,  so  Porterfield    v.    Porterfield,    85 

74    lo.    412;     Mandlebaum    v.    Mc-  Md.    663. 

Donell,  29  Mich.   78 ;    Ogle  v.  Rey-  ei  Lindley   v.    O'Reilly,    50    N.   J. 

nolds,    75   Md.    145;     Porterfield   v.  L.  636:   7   Am.  St.  Rep.  802:   Law- 

Porterfield,    85    Md.    663;     Belcher  ton   v.   Lawton,   5   O.   X.   S.   441;    7 

V.     Belcher,     38    N.    .T.      Eq.      126 ;  O.  D.  493. 
Vaughan  v.  Farmer,  90  N.  Car.  607 ; 


881 

LAW    OF     WILLS. 

held  that  no  number    less  than  all  of  them  can  exercise  the 

''T  plwer  of  sale  given  to  the  executor  is  substantially  com- 
plied with  by  a  sale  by  the  devisee  of  the  property  subject  to 
Lh  power  of  sale,  when  the  proceeds  of  the  sale  are  given  o 
the  executor  and  are  applied  by  him  to  the  purposes  set  fortli 

in  the  will."'  ■     j  i,     ii 

A  power  coupled  with  an  interest  may  be  exercised  by  the 
survivors  of  the  donees  of  the  power,  unless  expressly  pro- 
vided otherwise  by  will."' 

In  South  Carolina  a  statute  provides  that  powers  conferred 
upon  several  executors  may  be  exercised  by  the  survivors. 

When  all  the  trnstees  or  executors,  to  whom  the  power  of  sale 
was  originally  given,  have  died  or  resigned,  the  q"-'-"  ^  P^ 
sented  whether  this  power  of  sale  may  be  exercised  by  their 
nccessors  as  such,  or  whether  the  power  of  sale  is  terminated 
In  the  latter  case,  if  it  is  necessary  to  sell  the  real  es  ate  to  pay 
the  testator's  debt«,  it  can  be  done  in  most  jurisdictions  by 
a  snit  for  that  purpose  in  the  court  having  probate  jurisdiction. 
The  question,  as  to  the  right  of  the  successors,  or  executors  or 
trnstees  to  exercise  the  power,  turns  entirely  upon  the  in  en- 
tion  of  the  testator  as  manifest  in  the  will.     If  he  absolutely 
directs  a  power  of  sale,  and  leaves  the  executors  or  trustees 
only  to  the  ministerial  duty  of  carrying  this  mandatory  power 
into  execution,  it  is  generally  held  that  the  successors  may  ex- 

e=Wa,<l«.eU  v.  McDowell,  31  lU.  U.e  ottos  die  or  renounce  the  of- 

304,    Hadley   v.    Hadley,    147    M.  »-;'^  ^^        ,     B„,i„,    3e    s. 

423;    Gamble    v.    Tnppe     75    M.  ^  B«<,e„bu  ^    ^^^^^.^__ 

2S2,    32   Am.   St.  I^^P-    388;    Shel-  Car.  197.  ^^^^ 

*nn  V    Homer,  5  Met.  462;  Wilder  151)  fa.  ^^t-  '""•  ' 

l:Van„e.    .W.    r^U    Crowle,  rai^,   U.   ;^;  ----,- 

^f- ::  ^w.SLn,  e  0.0  bad  - -tardt.,\::- >:; 

^'  ^*  ^^^'  ^^r  ..      74    Ala        their   interests   to   C.     It  was  held 

6.  Robinson    v.    Alhson     74    Ala.       the  ^^^^.^^    ^^^^    ^^^^^^^^. 

254;    Bredenburg   v.   Bardm,   36    b  hat    C  ^  ^^^  ^    ^^^^^^ 

C.    197.      (The   court   sa.d    m   th.  und      th  ^^^^^  ^^.^^^   ^^ 

case:      "If    it   be   a   power    coupled  er   ne  coum 

with  a  trust,  it  survives  and  may  not. 

be  executed  by  one  executor  where 


832  LAW    OF    WILLS. 

ercise  this  power  without  any  suit  for  that  purpose,  or  without 
the  authority  of  the  court. *^*^ 

Where  the  power  of  sale  is  given  absolutely  and  uncondi- 
tionally, the  fact  that  the  executrix  is  to  sell  when  she  thinks 
it  most  advantageous,  does  not  make  such  a  discretionary  power 
as  can  be  exercised  by  her  successor  in  office.^^  So  where  a  will 
directed  that  the  executors  should  pay  certain  sums  of  money 
to  testator's  relatives  for  their  support  in  executors'  best  judg- 
ment and  discretion,  and  administrator  with  the  will  annexed 
might,  in  his  reasonable  discretion,  fix  the  sum  thus  to  be 
paid.^^  But  if  the  power  of  sale  conferred  is  not  absolutely 
and  unconditionally,  but  is  entirely  discretionary  with  the 
person  to  whom  it  is  given,  his  successors  in  office  can  not  ex- 
ercise it.^^  Interesting  questions  are  sometimes  presented  where 
a  power  of  sale  is  given  to  one  who  is  at  once  life  tenant,  exec- 
utor and  trustee,  and  the  will  does  not  clearly  specify  in  which 
capacity  the  sale  is  to  be  made.  The  question  is  one  of  the  tes- 
tator's intention  which  must  often  be  determined  by  the  careful 
study  of  the  whole  will.  If  the  power  of  sale  is  to  be  exer- 
cised for  trust  purposes,  the  donees  of  the  power  may  sell  as 
trustees  without  qualifying  as  executors.'^^  While,  on  the  other 
hand,  if  the  power  of  sale  is  for  the  purpose  of  settling  the  es- 
tate, the  power  is  to  be  exercised  by  the  donees  as  executors,  and 
upon  their  discharge  as  executors  their  power  to  sell  deter- 
mines.^^    So  in  jurisdictions  where  the  power  of  an  executrix 

66  Meddis  v.  Bull  (Ky.  )>  18  S.  cretion  as  to  paying  the  support, 
W.  6;  Bay  v.  Posner,  78  Md.  42;  but  only  as  to  fixing  the  amount, 
26  Atl.  1084;  Venable  v.  Mercan-  and  the  view  taken  by  the  court 
tile  Trust  Co.,  74  Md.  187 ;  Schi-o-  was  the  one  best  designed  to  car- 
eder  v.  Wilcox,  39  Neb.  136;  57  ry  testator's  general  intention  into 
N.    W.    1031;    Potts    V.    Breneman,  execution). 

182  Pa.  St.  295;  O'Rourke  v.  Sher-  69  Chgfmbers    v.    Tulane,    '9    N.    J. 
win,    156   Pa.    St.   285;    Boutelle  v.    ,  Eq.    146;    Farrar   v,   McCue,   89   N. 

Bank,  17  R.  I.  781:  In  re  Blakely,  Y.  139. 

19  R.  I.  324;    Smith  v.  Hall,  20  R.  to  Green   v.    Alden,    92    Me.    177: 

I.    170;    Bredenburg  v.    Bardin,    36  Hall    v.    Bliss,    118    Mass.    559:    19 

S.  Car.   197.  Am.   Rep.   476;    Mordecai  v.   Schir- 

67  Potts    V.    Breneman,    182    Pa.  mer,  38   S.  C.  294. 

St.  295.  '^'^  Goad  v.  Montgomery,   119  Cal. 

68  Allen   V.   Barnes,   5   Utah,    100       552 :    03    Am.    St.    Rep.    145. 
(in    this    case    there    was    no    dls- 


LAW     OF     WILLS. 


833 


terminates  by  marriage,  a  power  of  sale  to  testator's  widow,  to 
be  exercised  for  purposes  of  settling  the  estate,  terminates  upon 
her  second  marriageJ^  A  general  power  of  disposition  may  be 
exercised  by  the  attorney  in  fact  of  the  donee  of  such  powerJ^ 

§693.     Powers  to  be  exercised  with  the  consent  of  designated 
persons. 

A  testator  may  create  a  power  of  sale  to  be  exercised  only 
with  the  consent  of  all  of  a  certain  number  of  persons.  In 
such  a  case  any  number  of  the  designated  persons,  less  than  the 
whole,  can  not  exercise  such  power.''''*  Thus  authority  to  sell 
in  case  widow,  son  and  daughter  should  agree  can  not  be  ex- 
ercised by  the  widow  and  daughter  alone.'''^ 

Where  some  of  the  persons  whose  consent  is  to  obtained 
die  before  the  sale,  it  has  usually  been  assumed  by  the  court 
that  the  surviving  members  might  authorize  the  sale.'''^  How- 
ever, a  power  to  sell  upon  the  request  of  a  majority  of  certain 
children  of  testator  was  held,  after  the  death  of  some,  to  be 
capable  of  exercise  in  case  a  majority  of  the  whole  number  con- 
curred.'^^ And  a  power  of  sale  to  be  exercised,  providing  the 
widow  would  sigTi  the  deed,  was  held  to  be  incapable  of  ex- 
ercise after  the  death  of  the  widow.''* 

§694.     Effect  of  failure  to  exercise  power. 

Testator  may,  by  Avill,  give  power  of  appointment  in  such 
terms  that  the  donee  of  the  power  may  exercise  his  owm  discre- 
tion  in   selecting  the   persons   to   1)6   benefited   by  the   power. 

72Bartels  v.  Froehlich    (Kv.),  16  St.    1;    Carney   v.   Byron,    19   R.    I. 

S.   W.    358.                                   *  283;    36  Atl.  5. 

73Coates    V.    L.    &    N.    Ry.    Co.  77  Crane  v.   Bolles,  49   N.  J.   Eq. 

(Ky.),  17  S.  W.  564;  13  Ky.  L.  R.  373. 

557.  "«  Piersol  v.  Roop,   56   N.  J.   Eq. 

74  Poole    V.     Anderson.     80     Md.  739. 

454;    Porterfield    v.    Porterficld,    85  .    Contra    in    Marshall    v.    Wheeler, 

Md.  663;   McDonald  v.  O'Hara,  144  7   Mack.   414,   it  was   held   a   power 

N.  •  Y.     566 ;       Gordon    v.    Gordon  to   trustee   to   sell   with   consent   of 

(Tcnn.  Ch.  App.).  46  S.  W.  357.  testator's   father,   who   was  to  join 

7r.  Goebel  v.  Thieme.  85  Wis.  286.  in  the  deed,   could  be  exercised  af- 

76  Hackett    v.    Milnor,     156    Pa.  ter  the  death  of  the  father. 


834 


LAW    OF    WILLS. 


The  class  from  which  they  are  to  be  selected  is  generally,  how- 
ever, indicated  by  testator.  In  such  case  the  members  of  the 
class  can  not  assert  any  interest  in  the  property  covered  by 
the  power  unless  the  donee  of  the  power  exercises  such  power.'^'^ 
A  power  to  devise  may  be  mandatory,  in  which  case  it  will 
be  held  to  create  an  interest  in  the  beneficiary  of  the  power, 
which  equity  will  protect  even  if  the  donee  of  the  power  does 
not  exercise  it.^'^  If  the  power  of  appointment  is  not  exer- 
cised, and  the  testator's  intention  is  clearly  that  the  benefi- 
ciaries named  shall  receive  the  property,  it  is  to  be  divided 
equally  among  them.^^ 

§695.     Power  of  sale  g^ven  to  life  tenants. 

A  power  of  sale  of  the  remainder  may  be  given  to  one  to 
whom  a  life  estate  in  the  property,  covered  by  the  power,  is 
devised.**^  This  power  may  be  given  expressly.^^  Such  a 
power  may  also  be  implied  from  a  gift  to  one  for  life,  and  a 
gift  over  of  the  unexpended  portion  at  the  death  of  the  life 


79  Drake  v.  Drake,  134  N.  Y. 
220;  17  L.  R.  A.  664  (a  power 
of  appointment  to  all,  or  any,  or 
either  of  the  testator's  sisters,  or  to 
all,  or  any,  or  either  of  the  issue  of 
such  sisters  was  held  to  give  the 
donee  of  the  power  a  right  of  ap- 
pointment either  to  the  sisters  or  to 
their  issue,  in  his  discretion)  ;  Boyle 
V.  Boyle,  152  Pa.  St.  108  (a  power  to 
testator's  wife,  "any  remainder  at 
her  decease  to  be  disposed  of  by  her 
as  she  may  think  just  and  right 
among  my  children,"  is  held  to 
give  the  wife  the  power  of  exclud- 
ing one  of  testator's  children)  ; 
Hillen  v.  Iselin,  144  N.  Y.  365. 

80  Smith  V.  Floyd,  140  N.  Y. 
337,  affirming  71  Hun,  56  (a  life 
estate  to  A  "with  the  right  and 
privilege  of  disposing  of  the  same 
by  will  or  de^^se  to  his  children  if 
any"  was  held  mandatory)  ;  so  Ad- 
ams v.   Mason,   85   Ala.   452. 


81  In  re  Jack  (1899),  1  Ch.  374, 
68  L.  J.  Ch.  N.  S.  188.  (In  this 
case  the  donee  of  the  power  did  not 
exercise  it  as  to  part  of  the  prop- 
erty, but  expressed  a  desire  that 
it  should  go  to  two  of  the  three 
children.  It  was  held,  however, 
that  it  should  be  equally .  divided 
among  the  three.) 

82  See  Sec.  575,  et  seq. 

83  Security  Co.  v.  Pratt,  65 
Conn.  161  (a  power  to  life  tenant 
to  sell  any  part  of  "said  life  es- 
tate" and  use  or  invest  the  pro- 
ceeds, was  held  to  give  the  power 
to  pass  in  fee)  ;  Larsen  v.  John- 
son, 78  Wis.  300  (a  devise  to  A 
for  life  with  "power  to  dispose  of 
the  same  if  it  should  be  necessary 
for  her  support  and  comfort"  was 
held  to  give  power  to  dispose  of  the 
fee). 


LAW    OF    WILLS.  835 

tenant  to  another.^'*  So  a  power  of  sale  may  be  implied 
from  a  gift  for  life  with  general  power  to  possess  and  enjoy 
the  property  as  if  it  belonged  to  the  life  tenant,  especially 
where  the  gift  is  for  a  specific  pnrpose,  snch  as  the  support  of 
the  life  tenant  or  the  education  of  children,  where  the  prin- 
cipal may  not  be  sufficient.*'^  This  power  may  also  be  implied 
from  the  context  of  the  will.^^  ' 

Power  given  to  life  tenant  to  dispose  of  property  for  his 
own  use  must  be  clearly  given.  Thus  a  gift  of  real  and  per- 
sonal property  to  one  for  life,  to  have  full  control  of  the  same, 
and  after  her  death  "what  is  left"  to  go  to  beneficiaries 
named,  was  held  to  convey  only  a  life  estate  without  power  to 
sell,  the  expression  "what  is  left"  being  used  only  to  show 
that  the  life  tenant  was  not  to  be  charged  witli  necessary  loss 
of  perishable  personal  property.*^ 

A  power  clearly  given  to  a  life  tenant,  who  is  also  an  ex- 
ecutor, may  be  exercised  by  such  life  tenant  without  quali- 
fying as  executor.^^  And  when  such  a  power  is  exercised,  the 
life  tenant  does  not  have  to  account  for  the  proceeds  as  exec- 
utor.*^ 

84  Attorney  General  v.  Hall,  Fitz,  Davis  v.  Kirksey,  14  Tex.  Cir. 
314;  Howard  v.  Carusi,  109  U.  S.  App.  380;  King  v.  Bock,  80  Tex. 
72.5;    Gaffield   v.    Plumber,    175    111.       156. 

521;  Pfingst  v.  Dolfinger  (Ky.),  ^^  Qffutt  v.  Divine  (Ky.) ,( 1899), 
20  S.  W.  534;  14  Ky.  L.  R.  489;  49  S.  W.  1065  (an  extreme  case 
Ide  V.  Ide,  5  Mass.  500;  Burbank  in  which  a  provision  that  the  cap- 
V.  Whitney,  24  Pick.  146;  Hale  v.  ital  should  not  be  diminished  was 
Marsh,  100  Mass.  468 ;  Bowen  v.  ignored  in  order  to  carry  out  tes- 
Dean,  110  Mass.  438;  Ladd  v.  tator's,  general  intention  to  sup- 
Chase,  155  Mass.  417  (a  devise  to  a  port  his  daughter  and  her  chil- 
widow  for  her  use  forever,  with  a  dren,  and  by  reason  of  deprecia- 
devise  over  of  the  unexpended  por-  tion  of  the  property  the  income 
tion  upon  her  death  to  another.  was  entirely  insufficient  for  such 
was  held  to  give  a  life  estate  with  purpose). 

power   of    sale);    Bramell    v.    Cole,  87  Bramell  v.   Cole,   136  Mo.   201. 

136   Mo.   201;    Pierce   v.    Simmons,  ss  Smith    v.    Beardsley,    51    Fed. 

17   R.  I.   545.  122. 

85  Gold's  Estate,  133  Pa.  St.  495;  89  Meicur's  Estate,  151  Pa.  St. 
Martin's    Estate,    160    Pa.    St.    32;  49. 


836  LAW    OF    WILLS. 

§696.     Exercise  of  power  of  sale  by  life  tenants. 

Where  a  power  of  sale  is  given  to  a  life  tenant  to  sell  for 
a  specified  purpose,  the  vendee,  if  he  buys  in  good  faith,  takes 
an  absolute  title  which  can  not  be  set  aside  upon  the  applica- 
tion of  the  remainderman.^''  And  the  bona  fide  purchaser 
takes  a  title,  the  validity  of  which  is  not  dependent  upon  ac- 
tual necessity  for  the  sale.^^ 

Whether  the  power  of  sale  for  purpose  of  support,  when  used 
for  that  purpose  alone  and  in  good  faith,  is  subject  to  control, 
is  a  matter  in  which  the  courts  seem  somewhat  at  variance. 
It  has  been  held  that  the  life  tenant  is  the  only  person  to  de- 
termine the  necessity  of  the  sale.^^  On  the  other  hand,  it  has 
been  held  that  where  the  life  tenants  have  been  authorized  to 
use  as  much  of  the  principal  as  is  necessary  for  their  comfort, 
the  amount  to  be  taken  by  them  is  under  the  control  of  the 
court  considering  their  situation,  condition  in  life,  and  amount 
of  property  available.^^  Whether  the  life  tenant  who  has 
power  to  sell  the  principal  and  dispose  of  the  proceeds  for 
her  support  is  authorized  to  convey  the  property,  covered  by 
a  power,  in  consideration  of  services  to  be  rendered  to  her  by 
the  grantee,  is  another  question  upon  which  the  courts  are  at 
variance.^^ 

It  is,  however,  well  settled  that  a  power  to  resort  to  the. prin- 
cipal, where  necessary  for  the  support  of  the  life  tenant,  caa 

90  Clark  v.  Clark,  172  111.  355;  for  life  and  a  payment  of  funeral 
Harp  V.  Wallin,  93  Ga.  811;  expenses  was  valid.  So  in  Gadd 
Hardy   v.    Sanborn,    172   Mass.    405       v.     Stoner,    —    Mich.    —     (1897), 

(especially   where   realty   was    sold  71    N.    W.    1111,    a    conveyance   by 

at  appraised  value).  the   widow   in   consideration   of   an 

91  Griffin  v.  Griffin,  141  111.  373;  agreement  to  support  her  for  life 
Doran  v.  Piper,   164  Pa.  St.  430.  was    held    not    to    convey    the    fee, 

92  Paxton  V.  Bond  (Ky.),  15  S.  but  to  give  the  grantee  a  lien  on 
W.  875;   12  Ky.  L.  R.  949.  the  land   for  the  value  of  the  sup- 

93  Peckham  v.  Lego,  57  Conn.  port  furnished  less  the  value  of 
553;   7  L.  R.  A.  419.  the  use  and  occupation  of  the  iand. 

94  In  Barnard  v.  Stone,  159  Mass.  The  power  in  this  case  was  to  the 
224,  it  was  held  that  a  conveyance  widow  to  convey  the  fee,  but  to 
of  the  entire  property  of  the  life  have  a  Hfe  estate  only  in  the  pro- 
tenant   in   consideration   of   support  ceeds. 


887 

X,AW    OF    WILLS. 


not  be  exercised  for  the  purpose  of  making  presents,  and  a  con- 
veyance for  that  purpose  is  unauthorized.''^ 

Where  A,  tlie  o^vner  of  a  life  estate  and  donee  of  a  power, 
transferred  the  realty  to  B  for  a  purpose  on  its  face  authorize  , 
but  not  so  in  reality,  and  B  mortgaged  the  and  to  C,  a  mo 
gagee  in  good  faith,  it  was  held  that  V.  could  e.Jorce  the  mo  t- 
ga^e  upon  the  whole  of  the  realty  as  far  as  that  part  of  the 
Lney  loaned  which  was  applied  to  the  support  of  the  widow 
and  payment  of  her  debts,  while  as  to  the  rest  of  the  money 
which  B  retained,  it  could  be  enforced  on  that  part  of  the 

realty  descending  to  B.""  ,,      •     i  ,„  „=. 

And  where  the  life  tenant  was  expressly  authorized  to  us„ 
the  principal  "for  her  necessary  and  comfortable  support  and 
for  charitable  and  benevolent  purposes  and  contributions  for 
worthy  obiects,"  it  was  held  that  that  did  not  authorize  her  to 
make"  gifts  of  the   principal   in  return   for  kindnesses   done 

The  exercise  of  a  power  of  sale  by  a  life  tenant  is  held  to  ter- 
minate the  life  estate  and  convey  the  property  free    rom  the 
liens  of  any  judgments  obtained  against  the    ife  tenant.        The 
power  is  not  exercised  by  an  appointment  by  a  wiU^  winch  is 
made  conditional  that  the  death  of  the  testatrix  during  co.-cr^ 
ture,  where  such  testatrix  outlived  her  linsband,  and  the  w. 
is  not  republished  subsequently  to  the  death  of  such  husband.  • 
A  power  t»  a  life  tenant  to  convey  a  certain  number  of  sep- 
arate tracts  of  land  in  fee-simple,  is  not  exhausted  by  the  cmi- 
vevance  of  a  part  of  such  tracts,  it  not  being  necessary  that  the 
donee  of  the  power  should  select  or  convey  all  of  the  tracts 
at  one  time.^'^^ 

§697.     Rights  of  creditors  of  the  donee  of  a  power. 
'    Where  authority  is  given  to  nse  the  principal. for  the  sup- 
port of  the  beneliciary,  if  the  income  is  insufficient,  the  power 
onLehnara    v.    Specht,    180    111.  -Hose  v.  Hatch    125  N.  Y.  427, 

208;  Griffin  v.  Griffin,  141  111.  373;       affirnung  55  Hun.  45. 
Greene  v.  Smith,  17  R.  I-  28.  ^^  ^  re  Cuno,   L.   R.   43   Ch.   D. 

96  Griffin  V.  Griffin,   141   HI.   373.       12.  ^         ^  ,01    ill     -^41 

.         •  Ti^v,n«  Mi^-  100  Hunt  V.   Hawes,   181    HI.   -M.J. 

97  Park  V.   American  Home  Mis- 
sionary Society,  62  Vt.  19. 


838  LAW    OF    WILLS. 

may  be  exercised  after  the  support  is  furnished  as  well  as 
before.^ ^^  So  where  the  life  tenant,  in  pursuance  of  a  power 
of  sale  of  the  principal  for  her  maintenance,  had  directed  such 
a  sale  and  died  before  completing  it,  it  was  held  that  one  who 
had  furnished  her  with  support  upon  credit  had  a  right  to  have 
such  property  sold  for  the  payment  of  his  claim.^°^  But  where 
',the  donee  of  the  power  has  not  ordered  such  sale  in  her  life- 
time, a  sale  can  not  he  had  at  the  instance  of  her  creditors, 
the  power  being  purely  a  personal  one,^^^ 

In  the  absence  of  statute,  the  donee  of  a  power  can  not 
charge  the  estate  with  his  debts,^"^  and  a  judicial  sale  of  the 
life  tenant's  property  passes  no  more  than  his  life  interest.^ ^^ 
By  statute  in  some  jurisdictions,  a  donee  of  an  absolute  power 
of  appointment  may  exercise  such  power  so  as  to  pay  his 
debts.io^ 

§698.     Necessity  of  reference  to  power. 

In  the  absence  of  statute  it  is  well  settled  that  in  order  to 
constitute  a  valid  exercise  of  power,  the  instrument  by  which 
it  was  to  be  exercised  must  refer  specifically  to  the  power,  or 
must,  from  the  nature  of  its  provisions,  show  testator's  inten- 
tion to  exercise  the  power  conferred.^ *^'^ 

The  donee  of  the  j^ower,  however,  may  exercise  the  power 
without  referring  in  express  terms  to  the  instrument  by  which 
it  is  created.^ "^^     Where  the  instrument  exercising  such  power 

101  Smith  V.  Greeley,  67  N.  H.  band's  debts  where  the  debt  is  ac- 
377;    Luckenbach's  Estate,   175   Pa.      curately  aescribed.) 

St.  484.  107  Shore   v.    Shore,   21    Ont.   54; 

102  Luckenbach's  Estate,  175  Pa.  Lee  v.  Simpson,  134  U.  S.  572;  Har- 
St.  484.  vard    College    v.    Balch,      171      111. 

103  Ryan  V.  Mahan,  20  E.  I.  417.  275     (general     residuary     clause); 

104  Roundtree  v.  Dickson,  105  N.  South  v.  South,  91  Ind.  221;  46 
C.  350.  Am.  Rep.   501;    Cotting  v.  De  Sar- 

105  Ritchie  V.  Ritchie,    171   Mass.  tiges,    17    R.    I.    668. 

504.  losCoxen   v.   Rowland    (1894),    1 

106  In  re  Hodgs'on  (1899),  1  Ch.  406  (a  devise  of  all  property 
Ch.   666;    68   L.   J.   Ch.   N.   S.   313.       which    testatrix   was    competent   to 

(Undeir*  such  statute  a  married  dispose  of  by  any  power  was  said 
woman  may  exercise  such  power  of  to  be  a  good  exercise  of  a  power 
appointment  so  as  to  pay  her  hus-       of  appointment). 


O'JQ 

LAW    OF    WILLS. 


shows  that  the  donee  of  the  power  descrfbes  the  property  as 
"my  property,"  or  in  some  other  way  showing  an  assump- 
tion of  absolute  ownership,  this  does  not  prevent  the  instrument 
from  executing  the  power.^*^*^ 

This  rule  in  actual  practice  often  defeated  the  exercise 
of  the  power.  .  A  donee  of  a  power,  especially  if  he  has  a  life 
estate  in  the  property  covered  by  the  power,  is  very  likely  to 
think  and  speak  of  the  property  as  his  omi,  and  to  attempt  to 
exercise  the  power  by  giving  the  property  without  any  specific 
description  and  without  any  reference  to  the  power  to  be  ex- 
ercised. In  order  to  prevent  this  failure  of  intention,  stat- 
utes have  been  passed  in  some  states  providing  that  a  devise 
or  bequest  shall  extend  to  property  over  which  testator  has  a 
power  of  appointment,  unless  a  contrary  intention  shall  ap- 
pear in  the  will.  Under  such  statute  a  general  gift  of  all  the 
property  of  testator,  or  his  entire  estate,  or  any  similar  form 
of  words,  will  pass  property  over  which  he  has  a  power  of 

appointment.^  ^'^ 

So  under  such  statutes  a  general  residuary  clause  will  be  a 
valid  exercise  of  a  power  of  appointment^^!      And  a  power 

looBullerdick     v.     Wright,      US  Life    Ins.,    etc.,    Co     v     Livingston^ 

Ind.  477,  citing  Powell  v.  Roake,  2  133    N.    Y.    125;    K.mball    v.    New 

Bin.    497;    Madison   v.   Andrew,    1  Hampshire  Bible  Society,  65  N.  H. 

Ves^  S.   R.   57;    Blaggs  v.   Miles,   1  139;   Forsythe  v.  ForsyUie,     08  Pa. 

Story,   427;    Aniory  v.  Meredith,   7  St.   129;   Di  Ion  v.  Faloon,   lo8  Pa. 

Allen,    397;     White    v.    Hicks,    33  St.    ^68 ;_  Weir   v.    Smithy  62    Tex. 

N    Y    383;    Andrews  v.   Brumfield,  1;   Maehir  v.  Funk,   90  Va.  264. 

32    Miss.    107;    Cooper    v.    Haines,  "It  do^s  not  appear  that  she  was 

70  Md    282;     Lee  v    Simpson.   134  so  familiar  with  legal  views  of  her 

IT    S    ■57--   White  V.  Hicks,   33  N.  husband's    will    as    to    understand 

y'  383:  Keefer  v.  Schwartz,  47  Pa.  the    difference    between    a    fee    and 

^:         :^  her    rights    of    holding,    using    and 

'          -rr                MQOi^     -^  Ch  managing   property   as   she   saw   fit 

110 /n  re  Harmon      1894),   6   «^ii.  nuuui^     ""       ,.1           ,    j     •;!•„„    „ri,ri 

607;     compare    /„    re    Huddleston  duHng  ho,-    he  and   <Jee,«l.ng  w  o 

(18M)     3    Ch.    595;    Henderson  v.  should  have  ,t  afterward,^      Mn,- 

sLTh!  62   Fed.   708;    Funk  v.  Eg-  ball   v-   New   Hampshne  B.Me   So- 

g,e,to„,  92  in.   5,5;    U  An.  Kep  '^'^; ^  ^  ^^  „,,„,.    ,    „,. 

l.'^f)-     Pavne    v.    Johnson,    95    is^y.  in,    1^                            ,^^   ht  „o 

75'   186     (a    ..ift    of    "what    little  563;    Hassam  v.   Hazen,   156   Mass^ 

175,    186     (a    -i«    01  Lockwood   v.   Mildeberger,    159 

property    remains      held    to    pas»  ^3,                                                    ^.  ^ 

property  covered  by  power)  ;   Ladd  N.  Y.   181.   ^"^^^^ 

V   Chase,  155  Mass.  417  ;  New  York  H.  503 ;  Machu-  v.  Funk,  90  >  a.  -84. 


840  LAW     OF     WILLS. 

has  been  held  to  be  exercised  validly  by  a  will  made  by  the 
donee  of  the  power  before  the  power  was  given.^^^ 

In  other  states  statutes  of  narrower  types  are  in  force. 
Thus,  it  is  in  some  states  provided  that  a  conveyance  of  prop- 
erty, which  grantor  Vv^ould  liave  no  right  to  convey  but  by 
power,  shall  be  deemed  a  valid  exercise  of  the  power,  even 
though  there  was  no  reference  to  such  power  in  the  convey- 
ance.^ ^^  Under  such  a  statute,  where  a  grantor  has  both  an 
interest  and  a  power  in  the  property,  it  is  held  that  a  convey- 
ance, or  a  devise  without  reference  to  the  power,  will  pass  only 
the  interest  of  the  grantor,  and  will  not  be  deemed  a  valid 
exercise  of  the  power.-^^'* 

112  Burkett  v.  Whittemore,  36  S.  n*  Mutual  Life  Insurance  Co.  v. 
C.  428.  Shipman,    119   N.   Y.   324;    Lardner 

113  Hutton  V.   Benkard,  92  N.  Y.  v.  Williams,  98  Wis.  514. 
295. 


LAW     OF     WILLS. 


841 


CHAPTER  XXXII. 

CONVERSION. 


§699.     Conversion  in  general. 

It  is  a  doctrine  well  recognized  in  equity  that  under  proper 
circumstances  an  agreement  or  direction  to  change  property 
from  one  legal  class  to  another,  as  from  real  to  personal  or 
personal  to  real,  will  have  the  effect  in  equity  of  changing  the 
legal  character  of  such  property  at  once  before  it  is  in  fact 
changed.  This  doctrine  rests  upon  the  maxim  that  equity 
looks  ujion  that  as  done  which  ought  to  he  done,  and  is  kno^\^l 
as  the  doctrine  of  Conversion. 

The  forms  which  conversion  assumes,  where  the  direction 
to  convert  is  found  in  a  will,  arc  the  only  ones  to  he  consid- 
ered here.  In  determining  questions  of  conversion  by  will, 
the  fundamental  principle  is  that  conversion  is  effected  only  by 
a  clear  and  unequivocal  direction  to  convert.  Equity  looks 
upon  that  as  done  which  is  clearly  required  to  be  done,  not 
that  which  may  be  clone. 

Where  provisions  of  the  will  with  reference  to  the  power 
of  sale  are  conflicting,  the  property  is  ordinarily  treated  as 
not  converted.^  So  an  alternative  direction  to  convert,  as 
where  the  will  provides  that  a  fund  should  be  used  to  pur- 
chase realty,  or  else  it  should  be  put  out  at  interest,  does  not 
effect  a  conversion.^ 

1  Beadle  v   Beadle,   40   Fed.   31.5;  2  Becker's    Estate,     150     Pa.     St. 

Forsyth    v.    Forsyth,   46   N.   J.    Eq.       .524. 
400. 


842  LAW    OF    WILLS. 

§700.     Power  of  sale  without  discretion. 

This  doctrine  finds  freqnent  application  in  the  law  of  wills. 
Thus  a  positive  and  unqualified  direction  to  the  executors  or 
trustees  to  sell  realty  operates  as  a  conversion  of  such  realty; 
and  for  purposes  of  distribution  as  indicated  by  the  will,  the 
real  property  or  its  proceeds  will  be  treated  as  personal  prop- 
,erty.3 

§701.     Power  of  sale  with  limited  discretion. 

Where  the  direction  to  sell  is  absolute,  the  fact  that  some 
discretion  is  given  as  to  time  and  place  does  not  prevent  the 
direction  to  sell  from  working  a  conversion.'*  ISTor  does  dis- 
cretionary power  to  pay  outright  to  beneficiaries  or  to  hold  in 
trust  prevent  the  direction  to  sell  from'  working  a  conver- 
sion.^ 


§702.     Discretionary  power  of  sale. 

A  direction  to  change  the  class  of  property  must,  however, 

be  both  absolute  and  effective  in  order  to  work  a  conversion.^ 

A  power  of  sale,  which  is  not  peremptory  and  absolute,  but 

3  Tyrrell    v.    Painton     (1895),    1  Y.   126;    18  L.   R.  A.  458;   McDon- 

Q.  B.  202;  64  L.  J.,  P.  D.  A.,  N.  S.,  aid    v.    O'Harra,    144    N.    Y.    566; 

33;      In    re    Richerson     (1892),     1  Collier   v.   Grimesey,    36   O.    S.    17; 

Ch.    379;    Allen   v.   Watts,   98    Ala.  Helfrich    v.    Helfrich,    25    O.    L.    J. 

384;     Duffield    v.    Pike,    71     Conn.  313 :   Fahnestock  v.  Fahnestock,  1.52 

521;     Gross    v.    Sheeler     (Del.),    7  Pa.  St.  56:  Thomnian's  Estate,  161 

Houst.    280;    Ebey    v.    Adams,    135  Pa.    St.    444;    Klotz's    Estate,    190 

111.  80;    10   L.   R.   A.    162;    Creerar  Pa.  St.  152:  Newport  Water  Works 

V.  Williams,  145  111.  625,  affirming  v.  Sisson.  18  R.  I.  411:   In  re  Hol- 

44   111.    App.    492;     Glover   v.    Con-  der,  21  R.  I.  48:  21  R.  I.   (Part  1), 

dell,    163   111.    566;    Abell   v.   Abell,  49:    Brown    v.    Miller,    45    W.    Va. 

75    Md.    44;    Johnson    v.    Conover,  211;    McHugh    v.    McCole,    97    Wis. 

54  N.  J.  Eq.   333;   Roy  v.  Monroe,  166;   40  L.  R.  A.  724. 

47   N.  J.   Eq.   356;    Jones  v.  Jones,  *  Underwood  v.  Curtis,  127  N.  Y. 

46    N.   J.    Eq.    554,    affirming   Dut-  523;   Crane  v.  Bolles,  49  N.  J.  Eq. 

ton    V.    Pugh,    45    N.    J.    Eq.    426;  373:  Bell  v.  Bell.  25  S.  Car.  149. 

Fisher    v.    Banta,    66    N.    Y.    468 :  ^  Marshall's   Estate,    147    Pa.    St. 

Fraser   v.   United   Presbyterian   As-  77. 

soc,   124  N.   Y.   479,   modifying   58  o  Goodier  v.   Edmunds    (1893),   3 

Hun,   30;    Hope  v.   Brewer,    136   N.  Ch.  455;   see  Sec.  699. 


LAW    OF    WILLS.  °^^ 

may  be  exercised  entirely  at  the  discretion  of  the  executors  or 
trustees,  does  not,  of  itself,  work  a  conversion.^  So  a  power 
to  sell  land  with  the  consent  of  certain  heirs  does  not  effect 
a  conversion.^ 

A  discretionary  power  of  conversion  does  not  affect  a  con- 
version unless  actually  exercised.  Title  to  realty  to  be  sold 
under  such  power  descends,  therefore,  to  the  heir  at  law  until 
the  sale.^  The  heir  at  law  may,  accordingly,  sue  to  recover 
possession  of  the  property.^^  A  judgment  against  the  legatees 
may  become  a  lien  upon  such  property,^ ^  and  a  mortgage 
given  by  the  beneficiary  is  a  lien  upon  his  interest  in  such 
property,  and  the  mortgagee  will  be  protected  upon  the  sale 
of  the  property.^  ^ 

Where  testator  by  will  directed  that  the  executors  sell  cer- 
tain real  estate  to  A,  at  a  fair  price  to  be  fixed  by  certain  per- 
sons to  be  agreed  upon  by  A  and  the  executors,  such  a^  provi- 
sion was  held  to  work  a  conversion  where  the  sale  is  in  fact 
made.^^ 

§703.     Implied  power  of  sale. 

A  conversion  may  be  effected  by  an  implied  power  of  sale 
as  well  as  an  express  one.  Thus  a  direction  to  executor  to 
loan  out  at  interest  a  certain  amount  of  testator's  property, 
which  consisted  of  both  personalty   and  realty,   was  held  to 

7  Mills  V.  Harris,  104  N.  C.  626:  647;    Mills    v.    Harris,    104    N     C. 

Clift   V     Aloses,     116     N.     Y.     144;  626,;     Guarantee    Trust    and    Safe 

Sheridan   v.   Sheridan,    136   Pa.   St.  Deposit    Company    v.    Maxwell,    o3 

14        (In    Pvott's    Estate,    160    Pa.  N.  .T.  Eq.  194;  30  Atl.  339  ;  Ble.ght 

St   441,   testator   devised   realty  to  v.  Bank,  10  Pa.  St.  131  ;  Domimck 

his    wife   with    a    power    to   her    to  v.  Michael,  4   Sand.    (N.  1),   3/4; 

sell    if    she    thought    advantagemis.  Pratt  v.  Taliaferro,  3  Leigh.    (\a.) 

This  was  held  not  to  affect  a  con-  419. 
version   until   the   sale  was  made.)  i"  Estep    v.    Armstrong,    91    Cal. 

sGreenough  v.  Small,  137  Pa.  St.  659. 
128;    Sill    V.    Blaney,    159    Pa.    St.  ^  Eneberg     v.     Carter,     98     Mo. 

264-!   Irvin  v.  Patchen,   164  Pa.  St.       647. 

12  Lawton    v.    Lawton,    5    U.    JN- 

9  Walters    v.    Maunde,    19    Ves.        S.  441 :   7   O.  Dec.  493. 

424;    Estep   v.   Armstrono-.   91    Cal.  i--^  Benbow    v.    Moore,    114    N.    C. 

659-     Eneberg    v.    Carter,    98    Mo.       263. 


844  LAW    OF    WILLS. 

work  a  conversion  in  equity,  since  the  provisions  of  the  will 
could  be  complied  with  only  by  converting  the  realty  into  per- 
sonalty.-'^ 

§704.     What  sales  do  not  effect  a  conversion. 

Where  testator's  real  property  is  sold,  not  by  virtue  of  anv 
direction  in  his  will,  but  in  order  to  pay  his  debts,  under  pro- 
ceeding prescribed  by  law  for  that  purpose,^ ^  or  upon  fore- 
closure proceedings,^^  such  a  sale  does  not  alter  the  legal 
character  of  the  property.  And  a  sale  made  by  trustees,  en- 
tirely for  the  convenient  management  of  the  trust  and  not  un- 
der a  peremptory  direction  of  the  will,  does  not  change  the 
legal  title  of  the  proceeds  of  the  will  as  far  as  distribution  is 
concerned.^  ^ 

An  oral  unenforcible  contract  made  by  the  executors  to  sell 
real  estate,  over  which  they  have  discretionary  power  of  sale, 
does  not  amount  to  a  conversion. ^^ 

§705.     Double  conversion. 

A  double  conversion  is  also  recognized  by  courts  of  equity. 
Thus,  where  testator  directs  that  certain  real  estate  be  sold 
and  that  the  proceeds  be  used  in  purchasing  other  real  estate, 
the  property  is  treated  as  realty,  even  at  the  time  when  it 
exists  in  the  form  of  money.-' ^ 

The  doctrine  of  conversion  is  intended  as  a  means  of  carry- 
ing out  the  intention  of  testator.  Accordingly,  if  in  his  will 
he  makes  it  clear  that,  although  the  property  is  to  be  con- 
verted, he  desires  it  to  pass  in  its  converted  form  as  if  it  were 
still  in  its  original  form,  full  effect  will  be  given  to  this  in- 
tention.^^ 

14  Davenport    v.    Kirkland,    156  is  Mills    v.    Harris,    104    N.    C. 

111.   169;   see  Sec.  689.  626. 

15  Pence  v.  Pence,   11   O.  St.  290.  1 9  Ford   v.    Ford,   80   Mich.   42. 

16  7n  re  Jamieson,   18   E.   I.   385.  20/^    re    Bingham,     127     N.    Y. 
"Hovey   v.   Dary.    154   Mass.   7;  296. 

llhode  Island  Hospital  Trust  Com- 
pany V.   Harris,   20   R.   I.   408. 


845 

LAW     OF     WILLS. 


Thus  a  devise  of  the  residuum  to  the  "heirs  and  next  of  km 
in  the  same  proportion"  as  the  property  would  have  been  dis- 
tributed had  testator  died  intestate,  together  with  a  power  of 
sale  of  such  property,  the  residuum  to  he  distributed  m  cash 
was  held  to  show  testator's  intention  that  the  proeeeds  of 
realty  should  pass  as  realty,  sinee  he  used  the  word  "heirs'  with 
reference  tliereto.^^ 

§706.     Conversion  of  personalty  into  realty. 

Personal  property  may  also  be  converted  into  realty,  as  by 
an  absolnte  direction  to  purchase  land^with  a  certain  fund 
or  witb  the  proceeds  of  the  personalty.^^ 

§707.  Effect  of  failure  of  purpose  upon  conversion.— Re-con- 
version. 
Where  testator,  in  his  will,  directs  a  conversion  of  his  prop- 
erty for  certain  specific  purposes,  the  property  will  not  be  re- 
garded in  equity  as  converted,  any  further  than  necessary  for 
carrying  such  purposes  into  effect,  and  a  failin-e  of  such  pur- 
poses p^-events  a  conversion-  And,  unless  the  specific  pur- 
le  is  assi^ied  in  the  will,  it  will  be  presumed  that  the  power 
of  sale  is  g^ven  in  order  to  carry  into  execution  the  remaining 
provisions  of  the  will,  and  if  Aose  remaining  provisions  fail, 
the  nronertv  is  not  converted. 

In  c  se  rf  a  total  failure  of  conversion,  the  property  to  be 
coi»"  Id  descends  according  to  its  original  and  "'l--*;!;- 
acter.  unaffected  by  conversion-  But  -  --;7™;f- ^^^^ 
directed  by  will  for  the  purpose  of  paymg  t-'^*  ;  /*'  ; 
the  balance  t«  be  distributed  as  personalty,  in  a  la.ge  pa.t 

..  ,n  ,.  Bin,ha™,  127  N.  Y.  206.       v.  McCo.e,  07  Wis.  106;   40  L.  R. 

23  Rov   V.   Monroe,  47   N.  J.  Eq.       A.    724.  Smithson     1    Bro. 

356;    Holmes   v.   Pickett,   51    S.   C.       ^^    ^^^     ^^^^     ^^^^^  ^   ^o\.\A^^,  53 

271-  ^    T    Ea    137;   Luflfberry's  Appeal, 

23  Ackroyd  v.  Smithson,  1  Bro.  C.  N.  ^-J^'  [^'^ 

C    503-    Roy   v.   Monroe,   47   N.   -T.  125   Pa.   St    513. 

Kj.   ouo,    rvuj^                „,.„.             1.0-  05  Apk-rovd    V.    Smithson,    1    i^io. 

Eq.    356;    Read    v.    Wxlhams.    12o  "^  ^f;7^3 .    Luffberry's    Estate, 

N.    Y.    560:    Gallagher    v.    Rowan,  Ch.    ^as.    olM 

86  Va.   823;    Fifield  v.  Van  Wyck,  125  Pa.  St.  513. 
94  Va.  557  :  27  S.  E.  446 ;  McHugli 


846  LAW    OF    WILLS. 

as  intestate  property,  it  was  held  that  the  creditors  and  leg- 
atees could  not  effect  a  reconversion  by  releasing  their  debts 
and  legacies.^*" 

Where  there  is  a  partial  and  not  a  total  failure  of  the  pur- 
poses for  which  the  power  of  sale  was  conferred,  the  property 
must  be  treated  as  converted,  and  must  descend  as  property 
of  the  class  to  which  it  was,  by  will,  to  be  couverted.^"^ 

Where  a  power  of  sale  fails  of  execution,  the  property  to 
be  converted  passes  to  the  beneficiary  in  its  unconverted  form, 
if  the  gift  itself  is  valid.^^  So  by  agreement  between  the 
beneficiaries,  the  property  to  be  converted  may  be  taken  in  its 
unconverted  form.^^ 

§708.     Effect  of  conversion. 

The  effect  of  conversion  of  property  is  to  impress  the  prop- 
erty converted  with  the  character  of  the  property  into  which  it 
is  to  be  converted,  even  before  a  change  in  form.  Thus,  where 
there  is  a  conversion  of  realty,  the  realty  to  be  converted  will 
be  distributed  as  if  it  were  personalty.^^  And  where  the  Rule 
in  Shelley's  Case  applies  to  the  devises  of  realty,  but  does  not 
apply  to  bequests  of  personalty,  conversion  may  prevent  the 
application  of  the  rule.^^  And  in  jurisdictions  where  bequests 
of  personalty  can  be  made  at  an  earlier  age  than  devises  of 
realty,  it  has  been  held  where  a  testator  directs  that  his 
realty  be  converted  into  personalty,  and  the  proceeds  given 
to  certain  designated  individuals,  that  one  of  these  individ- 
uals can  dispose  of  his  interest  thus  given  as  soon  as  he  is 
old  enough  to  dispose  of  personal  property.^^ 

26  Adam's    Estate,     148    Pa.    St.  29  Howell   v.   Mellen,   169   Pa.   St. 

394,  on  rehearing,   148   Pa.   St.   399  139;    see    Sec.    718. 

(accordingly  the  realty  covered  by  so /^  re  Richerson    (1892),  1  Ch. 

the  direction  to  convert  was  added  379 ;   Hand  v.  Marcy,  28  N.  J.  Eq. 

to  the  residuum  of  personalty).  59;   Ingersoll's  Estate,   167   Pa.   St. 

2-!  In  re  Pucherson    (1892),  1  Ch.  536;    Lackey's   Estate,    149   Pa.   St 

379.  7 ;    Newport    Water    Works   v.    Sis- 

28 /n     re    Bingham,     127     N.     Y.  son,  18  R.  I.  411. 

296;     Parker  v.   Linden,   113  N.  Y.  si  Gross    v.     Sheeler,     7     Houst. 

28;     Chamberlain    v.    Taylor,     105  (Del.),  280. 

N.    Y.    185;    Gourley    v.    Campbell,  32  Allen   v.    Watts,    98    Ala.    384. 
66   N.   Y.    169. 


LAW    OF    WILLS.  ^47 

§709.     Time  at  which  conversion  takes  effect. 

Where  a  will  contains  a  direction  to  convert,  in  terms  so 
possitive  as  to  eifect  a  conversion,  and  no  time  is  fixed  at 
which  such  conversion  shall  take  effect,  the  general  rule  is 
that  the  property  is  to  be  regarded  as  converted  from  the 
death  of  testator,  and  not  from  the  time  when  the  property  is 
actually  sold.^^  But  where  conversion  is  discretionary  with 
the  trustees  or  donees  of  the  power  of  sale,  no  conversion  takes 
place  in  law  until  the  character  of  the  property  is  changed  iu 
fact.^-* 

asEbey   v.    Adams,    135    111.    80;       —  N.  J.  Eq.  — ;   24  Atl.  365. 
10  L.  R.  A.  162;    Snover  v.  Squire,  34  See   Sec.   702. 


348  LAW    OF    WILLS. 


CHAPTER  XXXIII 

ELECTION. 


§710.     Election  in  general. 

There  is  a  broad  principle  originating  in  equity  and  running 
through  many  different  subjects  of  law  to  the  effect  that  one 
upon  whom  inconsistent  rights  are  conferred  has  his  choice 
as  to  which  he  will  take,  but  can  not  have  both.  This  right 
to  choose  between  these  inconsistent  rights  is  known  as  elec- 
tion. The  abandonment  of  the  other  right  when  the  one  is 
elected  is  known  as  a  waiver.  This  general  principle  of  the 
necessity  of  election  between  inconsistent  rights,  finds  manv 
applications  in  the  law  of  wills.  In  many  different  forms 
testators  attempt  to  dispose  of  property  which  belongs,  either 
in  whole  or  in  part,  to  others.  Where  nothing  is  given  in 
place  of  such  property  rights  thus  defeated,  the  doctrine  of 
election  does  not,  strictly  speaking,  apply,  there  not  being  anv 
inconsistent  rights  between  which  the  own^ier  must  elect.^     But 

iHall    V.    Smith,    103    Mo.    289 :  means  a  choice  between  two  courses 

.Tacob  V.  Jacob,  78  Law  T.  825,  af-  of  action,  acquiescence  by  the  wid- 

firming  78  Law  T.  451)  ;  Sumerel  V.  ow    in    her    husband's    disposition 

Sumerel,    34    S.    Car.    85;    Cook    v.  of  his  property  or   disregard  of   it 

Couch,    100    Mo.    29;     Burgess    v.  and  assertion  of  the  rights  the  law 

Bowles,    99    Mo.    543;    Bennett    v.  gives     her.       There     is     no     third 

Harper,   36  W.  Va.  546.  course."     Cunningham's  Estate,  137 

"Election    in   the    sense   that   ap-  Pa.  St.  621. 
plies     to     the     present     contention. 


LAW    OF    WILLS. 


849 


where  the  will  gives  some  right  to  the  person  whose  property 
interest  is  sought  to  be  defeated,  a  case  for  election  arises.^ 

Wherever  the  rights  conferred  are  not  inconsistent,  no  case 
for  election  arises.  Thus  a  gift  of  the  income  of  a  fund  to 
testator's  widow,  together  with  the  right  to  use  any  part  of 
the  principal  u])on  three  months'  notice,  does  not  require  the 
widow  to  elect  between  her  right  to  use  the  income  and  the 
principal.  But  after  using  the  income  as  long  as  she  thinks 
necessary,  she  may  on  demand  have  the  principal  paid  over.^ 

The  intention  of  testator  must  ordinarily  be  clear  to  put 
the  devise  to  his  election.'*  Thus,  where  the  property  devised 
did  not  exceed  that  given  by  the  law,  no  election  is  necessary 
in  the  absence  of  statute.^ 

In  determining  whether  an  election  is  necessary  or  not,  the 
test  is,  is  the  property  right  given  by  law  so  inconsistent  with 
that  devised  by  will  that  both  can  not  stand.*' 

The  right  of  election,  however,  is  a  unit,  unless  the  will 
specifically  provides  otherwise;  that  is,  the  person  having  the 

2  Clark  V.  Clark,  1.32  Ind.  25;  4  Jacob  v.  Jacob  (C.  A.),  78 
Smith's  Estate,  GO  Mich.  130;  Law  T.  825  (affirming  78  Law  T. 
Haack    v.    Weiken,    118    N.    Y.    67;       451). 

Melick    V.   Darling,    11     Ohio,   343;  s  Burgess  v.  Bowles,  99  Mo.  543. 

White    V.    Brocaw,    14    O.    S.    339;  (In    this    case    testator    devised    to 

Huston  V.  Cone,  24  O.  S.  11 ;    Cun-  his   wife   as   long   as   she   remained 

ningham's  Estate,   137  Pa.   St.  621.  his  widow  certain  property  to  which 

3  Smith  V.  Jackman,  115  Mich.  she  was  entitled  under  the  homc- 
192  (of  course  upon  payment  of  stead  law.  She  occupied  the  prop- 
the  principal,  her  right  to  the  in-  erty  and  remarried.  It  was  held 
come  ceased.  The  doctrine  stated  that  no  case  for  election  existed, 
in  the  text  is  worked  out  in  de-  and  that  she  could  still  claim  her 
tail  in  the  application  of  the  gen-  rights  under  the  law). 

eral  principle  of  election  of  par-  s  Hair  v.  Goldsmith,  22  S.  Car. 
ticular  rights  which  follows  in  566;  Callaham  v.  Robinson,  20  S. 
this  chapter):  Cook  v.  Couch,  100  Car.  249;  Sumerel  v.  Sumerel,  34 
Mo.  29  (a  provision  that  testator's  S.  Car.  85.  An  express  provision 
property  shall  go  to  his  wife  and  that  a  bequest  to  testator's  wife 
children,  that  his  wife  shall  retain  was  not  intended  to  be  in  lieu  of 
her  lawful  dower  and  may  will  her  dower  was  held  ineffective  where 
portion  as  she  pleases,  gives  her  her  testator  had  disposed  of  all  his 
dower  and  an  equal  share  in  the  property  by  will.  Parker  v.  Park- 
fee  with  the  children).  er,  13  O.  S.  95. 


860  LAW     OF     WJLLS. 

right  of  election  may  elect  either  of  the  inconsistent  rights, 
but  can  not  take  both  nor  can  he  take  a  part  of  eachJ 

The  doctrine  of  election  and  waiver  can  apply  only  to 
rights  given  for  the  sole  benefit  of  the  person  who  seeks  to 
make  the  election.  If  they  are  given  for  any  other  purpose 
they  can  not  be  waived.^ 

These  principles,  in  so  far  as  they  affect  the  law  of  wills,  are 
better  illustrated  by  a  discussion  of  the  types  of  cases  in  which 
they  are  applied  than  by  discussion  of  them  in  the  abstract. 

§711.     Election  between  dower  and  devise  under  the  will,  where 
testator  intends  devise  to  be  in  lieu  of  dower. 

The  surviving  husband  or  wife  of  a  decedent  is  given  by 
law  certain  rights  in  the  real  and  personal  property  of  such 
decedent.  The  right  of  dower  at  common  law  was  a  right 
to  a  surviving  widow  to  a  life  interest  in  a  third  part  of  the 
real  estate  which  her  husband  had  o^vned  by  such  title  that 
her  children  by  him  might  have  inherited.^ 

Curtesy  was  the  right  of  her  husband  to  a  life  estate  in  the 
whole  of  his  wife's  real  property  which  she  owned  by  such 
title  that  a  child  bom  to  that  marriage  might  have  inherited  it, 
provided  that  a  child  had  been  born  alive  capable  of  inheriting 
the  property.^  *^  These  rights  have  been  greatly  modified  by 
modern  statute  law.  The  nature  and  extent  of  these  rights 
belong  rather  to  real  property  than  to  the  law  of  will's,  and 
will  not  be  considered  here  any  further  than  it  may  be  neces- 
sary to  explain  the  application  of  the  principles  of  election 
to  these  cases. 

Where  it  is  clear,  either  from  specific  provisions  in  a  will, 
or  from  the  will  as  a  whole,  that  testator  intends  a  provision 
for  the  surviving  spouse  to  be  in  lieu  of  the  curtesy  or  dower 

■    T  Hainer  v.  Iowa  Legion  of  Hon-  621;   Eichelberger's  Estate,  135  Pa. 

or,   78   lo.   245;     Welch   v.    Adams,  St.    160. 

152    Mass.    74;    9    L.    R.    A.    244:  §  Leonard  v.  Haworth,  171  Mass. 

Bird   V.   Hawkins    (N.   J.).   42   Atl.  496. 

588;   Haack  v.  Weicken,  118  N.  Y.  »  See  Sec.  23  and  Sec.  137. 

67;   Jones  v.  Lloyd.  33  O.   S.  572;  lo  See  Sec.  23  and   Sec.   137. 

Cunningham's    Estate,    137    Pa.    St. 


LAW     OF     WILLS. 


861 


rights  of  such  surviving  spouse  full  affect  is  given  to  such 
intention,  and  the  surviving  spouse  must  then  elect  between 
the  two  provisions.^  ^ 

The  intention  to  put  the  surviving  spouse  to  an  election 
between  the  dower  interest  and  the  provisions  of  the  will  may 
be  by  using  express  language,  such  as  "in  lieu  of  dower."  ^^ 

ISTecessity  of  election  may  also  be  created  by  necessary  im- 
plication from  the  context  of  the  will,  as  where  it  is  impos- 
sible to  carry  the  provisions  of  the  will  into  effect  if  both  the 
property  devised  by  the  will  and  the  dower  interest  are  given 
to  the  surviving  spouse.  Such  a  will  makes  the  case  which 
exists  wherever  the  doctrine  of  election  becomes  material; 
one,  namely  in  which  testator  makes  a  gift  to  A,  and  also 
gives  some  right  of  A's  to  B,  in  which  case  A  must  elect 
whether  to  take  under  the  will  and  allow  B  to  take  A's  prop- 
erty or  whether  to  repudiate  the  will  and  stand  upon  his  own 
rights. -^^ 

Thus  where  all  the  real  estate,  except  that  devised  to  the 
widow,  is  specifically  disposed  of  by  the  Avill  in  such  way  as 
to  show  testator's  intention  that  it  should  pass  free  from  her 
dower,  it  is  sufficient  to  put  her  to  her  election.^^ 

§712.     Common  law  rule  that  devise  was  presumed  to  be  in  ad- 
dition to  dower. 

Where  testator  does  not  in  his  will  either  expressly  or  im- 
pliedly indicate  whether  the  devise  is  given  in   addition  to 

11  Bennett  v.  Packer,  70  Conn.  is  Bennett  v.  Packer,  70  Conn. 
357;  Clark  v.  Clark,  132  Ind.  25;  357;  Clark  v.  Clark,  132  Ind.  25; 
Von  Phul  V.  Hay,  122  Mo.  300;  Hovey  v.  Hovey,  61  N.  H.  599; 
Hovey  v.  Hovey,  61  N.  H.  599 ;  Cooper  v.  Cooper,  56  N.  J.  Eq.  48 : 
Cooper  V.  Cooper,  56  N.  J.  Eq.  48 ;  Helme  v.  Strater,  52  N.  J.  Eq. 
Helme  v.  Strater,  52  N.  J.  Eq.  591 ;  591 ;  Griggs  v.  Veghte,  47  N.  J. 
Griggs  V.  Veghte,  47  N.  J.  Eq,  Eq.  179;  Cunningham's  Estate,  137 
179;  Bannister  v.  Bannister,  37  S.  Pa.  St.  621;  Bannister  v.  Bannis- 
C.  529;  Stokes  v.  Norwood,  44  S  ter,  37  S.  Car.  529;  Callaham  v. 
C.  424.  Robinson,   30   S.   Car.  249. 

12  Von  Phul  V.  Hay,  122  Mo.  i-*  Cooper  v.  Cooper,  56  N.  J.  Eq. 
300 ;  Brown  v.  Brown  55  N.  H.  48 ;  Bannister  v.  Bannister,  37  S.  C. 
106;     Stokes    v.  Norwood,  44  S.  C.       529. 

424. 


852  LAW     OF     WILLS. 

dower  or  in  lieu  of  dower,  it  is  necessarily  an  arbitrary  rule 
of  law  that  determines  which,  of  these  two  possible  intentions 
it  should  be  assumed  that  testator  entertained.  At  the  com- 
mon law  it  is  held  that  where  testator's  intention  was  not  ap- 
parent upon  the  will,  the  devise  would  be  23resimied  to  be  in 
addition  to  dower.^^ 

The  fact  that  testator  in  his  will  declared  his  intention  to 
dispose  of  his  entire  estate  does  not  prevent  the  application 
of  this  common  law  rule  where  the  assignment  of  dower  will 
not  interfere  with  any  provision  of  the  will;^®  nor  in  a  juris- 
diction where  dower  is  an  estate  in  fee-simple  does  a  de- 
vise to  '  the  widow  for  life,  of  testator's  entire  realty,  show 
his  intention  to  deprive  her  of  the  remainder  in  fee  of  one 
third  of  such  realty.-^ '^ 

§713.     Statutory  rule  that  devise  is  presumed  to  be  in  lieu  of 
dower. 

By  statute  this  common  law  rule  has  been  abridged  in  many 
states,  and  the  opposite  rule  established,  to  the  effect  that  a 
provision  in  a  will  for  the  benefit  of  the  surviving  sjDOUse 
shall  be  presumed  to  be  in  lieu  of  dower  or  curtesy  rights,  un- 
less it  appears  to  be  testator's  intention  that  such  provision 
shall  be  in  addition  to  such  rights.^  ^ 

Under  such  a  statute  a  devise  to  testator's  widow  is  pre- 
sumed to  be  in  lieu  of  dower  in  any  real  estate  which  she  might 

15  Parker  v.  Hayden,  84  lo.  493;  S.   C.   428;    Hatch's   Estate,   62   Vt. 

Herr  v.  Herr,  90  lo.  538;   Richards  300. 

V.    Richards,    90    lo.    606;     Bare   v.  is  Hatch's   Estate,   62   Vt.   300. 

Bare,    91    lo.    143;      Sutherland    v.  it  Proctor's   Estate,    103   lo.   232. 

Sutherland,   102  lo.  535;    Proctor's  "  Stunz   v.    Stunz,    131    111.   210 

Estate,    103    lo.     232;     Hunter     v.  Stone  v.  Vandermark,  146  HI.  312 

Hunter,  95  lo.  728;  64  N".  W.  656;  Warren    v.    Warren,    148    111.    641 

Watson  V.  Watson,  98  lo.  132;    67  Like     v.     Cooper,     132     Ind.     391 

N.    W.    83;    Frankes    v.    Weigand,  Huhlein    v.    Huhlein,    87    Ky.   247 

66  N.  Y.  918;    McGowan  v.  Bald-  Kelly   v.   Ball    (Ky.),    1892,   19    S 

win,  46  Minn.  477;  Cook  v.  Couch,  W.  581;    Luigart  v.  Ripley,  19  O.  S 

100  Mo.  29;    Hiers  v.  Gooding,  43  24;   Boiling  v.  Boiling,  88  Va.  524 


LAW     OF     WILLS.  O^*^ 

claim,  including  real  estate  sold  testator  previous  to  his  death, 
by  deed  in  which  the  wife  did  not  join.^^ 

Since  the  statutes  requiring  written  election  are  strictly 
construed,  the  statute  may  not  require  election  if  the  Avidow 
seeks  to  claim  dower  in  land  conveyed  by  her  husband  before 
his  death.  Thus  a  statute  requiring  election  between  a  de- 
vise by  will  and  dower  in  land  of  which  the  husband  "died 
seized,"  has  been  held  not  to  apply  to  dower  rights  in  land 
conveyed  by  the  husband  before  his  death,  in  which  the  Avidow 
did  not  release  her  dower  right.^^ 

In  Virginia  this  rule  does  not  apply  to  wills  executed  by 
testator  domiciled  in  other  jurisdictions.  Accordingly,  where, 
by  the  law  of  the  jurisdictions  of  the  domicile,  a  gift  to  a 
widow  would  prima  facie  be  in  addition  to  her  dower,  it  will 
not  bar  her  dower  in  Virginia.^! 

And  a  devise  of  the  use  of  testator's  real  property  to  his 
widow  until  his  son  reaches  majority,  at  which  time  testa- 
tor's property  is  to  be  distributed,  Imt  in  case  testator's  widow 
should  remarry  before  such  distribution,  the  executor  of  the 
estate  Avas  to  collect  the  rents  from  the  real  estate  and  pay  the 
widow  only  her  doAver  interest  therein,  shoAvs  testator's  inten- 
.tion  to  give  to  the  widoAV,  in  addition  to  her  doAver  rights 
'therein,  the  use  of  the  real  estate  until  her  second  marriage, 
or  until  the  son  came  of  age.^^ 

EA-en  where  this  statute  is  in  force  a  devise  which  neces- 
sarily includes  doAver,   as  an  absolute  devise  of  all  testator's 

19  Sanders   v.    \Yallace,    118    Ala.  property    to    testator's    widow    in 

418 ;    Haynie  v.  Dickens.  68  111.  2G7  ;  lieu  of  all  her  rights  in  testator's 

Warren    v.    Warren,    148    111.    641;  estate,  and  she  elects  to  take  under 

Fairchild    V.    Marshall,    42    Minn.  the  will,   she  is  estopped  from  su- 

14-     Buffinton    v.   Fall    River    Na-  ing    to    recover    property    conveyed 

tional  Bank,  113  Mass.  246;    Spald-  away   by   her   husband   as   being   in 

ing    V.    Hershfield    15    Mont.    253;  fraud  of  her  rights.     Cooke  v.   Fi- 

Nelson  v.   Brown,    144   N.   Y.    384;  delity  Trust,  etc..  Company    (Ky.), 

Corry  v.  Lamb,  45  0.  S.  203;  Evans  47  S.  W.  325:  20  Ky.  L.  Rep.  667. 

V     Pierson,    0    Rich.    (S.    Car.),    9.  ^o  Hall  v.  Smith.  103  Mo.  289. 

Contra,    Borland    v.    Nichols,    12  21  Boiling     v.     Boiling,     88     Va. 

Pa.  St.  38;  51  Am.  Dec.  576;  West-  524. 

brook    T.    Vanderburgh,    36    Midi  22  Kelly   v.    Ball    (Ky.),    (1892), 


30. 

So  where  the  will  devised  certain 


19  S.  W.  581. 


854  LAW    OF    WILLS. 

realty  to  his  wife  for  her  life,  is  presumed  to  be  in  addition 
to  dower.^^  If,  however,  the  devise  does  not  necessarily  in- 
clude dower,  as  a  devise  of  all  realty  to  the  wife  during  her 
widowhood,  under  the  statute  it  is  presumed  to  be  in  lieu 
of  dower.^'* 

§714.     Election  between  life  insurance  and  gifts  under  the  will. 

A  testator  frequently  attempts  by  will  to  dispose  of  the 
proceeds  of  life  insurance  policies,  payable  to  certain  desig- 
nated beneficiaries,  and  not  subject  to  his  disposition  by  will. 
In  such  a  case  if  testator  makes  some  other  provision  by  his 
will  for  the  beneficiaries  under  the  life  insurance  policy,  a 
case  for  election  is  created,  and  the  beneficiaries  under  the 
will  have  their  choice  between  taking  the  life  insurance  and 
accepting  the  benefits  of  the  will,  and  their  election  of  either 
waives  their  right  to  the  other.^^  But  if  the  policy  is  pay- 
able to  one  not  a  beneficiary  no  case  for  elecwn  arises.  Thus, 
where  the  bequest  was  made  to  A,  testator's  grandson,  and  the 
policy  was  payable  to  B,  testator's  son,  there  was  no  neces- 
sity of  election,  even  though  B  had  died,  since  the  policy  was 
payable  to  B's  administrator.^*^  Testator's  intention  to  dis- 
pose of  a  policy  which  belongs  to  another  must  appear  clearly 
upon  the  will  and  can  not  be  inferred  from  ambiguous  ex- 
pressions.^^ 

§715.     Election  between  community  rights  and  gifts  by  will. 

In  some  states  a  wife  acquires  a  vested  interest  in  a  frac- 
tion, generally  one-half,  of  all  property  accum.ulated  by  the 

23  Baxter    v.    Bowyer,    19    O.    S.  25  Hainer  v.  Iowa  Legion  of  Hon- 

490.     Hence   the  widow  who   takes  or,    78    la.    245 ;    Van     Schaack     v. 

under    the    will    is    protected    from  Leonard,    164   111.   602;    Hartwig  v. 

the   claims  of  her   husband's   credi-  Schiefer,   147   Ind.   64. 

tors    to    the    extent    of    her    dower  26  Hartwig  v.    Schiefer,    147   Ind. 

right.  64    (modifying  on  rehearing  42  "N". 

24Lingart    v.    Ripley,    19    O.    S.  E.   471). 

24.     If  the  widow  takes  under  the  27  Charch    v.    Charch,    57    O.    S. 

will  and  then  remarries,  her  dower  561. 
is    therefore    lost. 


LAW    OF    WILLS.  855 

husband  subsequent  to  marriage.  If  the  husband  in  his  will 
attempts  to  dispose  of  the  entire  ownership  of  the  property 
thus  accumulated,  and  in  his  will  makes  some  provision  for 
his  wife,  a  case  of  election  is  created,  and  the  wife  may  take 
the  property  given  to  her  by  the  will,  or  may  stand  upon  her 
rights  as  part  owner  of  the  community  property.^^ 

But  where  testator's  will  refers  only  to  his  own  property 
rights,  and  does  not  attempt  to  dispose  of  those  of  the  widow, 
no  case  for  election  is  created.-^ 

§716,     Election  between  homestead  rights  and  gifts  by  will. 

Under  modern  statutes  property  rights  in  real  estate  used 
as  a  residence  or  homestead  are  recognized  and  enforced. 
Where  a  homestead  is  treated  as  a  peculiar  form  of  property, 
a  surviving  widow  is  put  to  an  election  between  the  provi- 
sions of  the  will  and  her  homestead  rights  only  where  the  pro- 
visions of  the  will  will  be  defeated,  in  whole,  or  in  part,  by 
setting  off  the  homestead  to  her.^''  Thus  a  devise  to  widow,  of 
testator's  real  estate,^^  or  of  "one-half  of  all  I  own,"  ^^  does 
not  put  the  widow  to  her  election  between  her  homestead 
rights  and  the  provisions  of  the  will,  where  the  remaining 
provisions  of  the  will  can  be  carried  into  effect  after  giving 
the  widow  both.^^  JSTor  does  a  devise  to  the  widow  of  specific  real 

28  Smith's  Estate,  108  Cal.  115 ;  3i  Stokes  v.  Pillow,  G4  Ark.  p. 
Smith  V.  Butler,  85  Tex.  126;  Mayo       1. 

V.    Tudor,    74   Tex.    471;     Chace    v.  32  McGowan  v.  Baldwin,  4G  Minn. 

Gregg,    Tex.   Civ.    App.    (1895),   31  477. 

S.   W.   76.  33  (An     apparent    conflict    which 

29  Haby  v.  Fuos,  —  Tex.  Civ.  can  possibly  be  reconciled  has 
App.    (1894),  25  S.  W.  1121.  arisen  on  this  point. 

30  Helm  V.  Legpjett,  66  Ark.  23;  In  Stokes  v.  Pillow,  64  Ark.  1. 
Stokes  V.  Pillow,  64  Ark.  1 ;  Nich-  a  devise  of  all  of  testator's  real 
ols  V.  Lancaster,  —  Ky.  — ,  1896 ;  estate  to  his  widow  was  held  not 
32  S.  W.  676;  McGowan  v.  Bald-  to  be  inconsistent  with  her  home- 
win,  46  Minn.  477 ;  Schorr  v.  Et-  stead  right,  so  that  by  using  the 
ling,  124  Mo.  42 ;  Kouvalinka  v.  property  she  did  not  lose  her  home- 
Schlegel,  104  N.  Y.  125;  Wells  v.  stead  rights,  and  might  subsequently 
Congregational  Church,  63  Vt.  116;  assert  them  as  aginst  her  husband's 
Nelson    v.    Kownslar,    79    Va.    468;  creditors. 

Lewis  V.   Lichty,  3  Wash.   213.  In  Carr  v.  Carr,   177  111.  454,  it 


856  LAW   or    WILLS. 

property,  and  all  of  testator's  mixed  and  personal  property, 
followed  by  a  provision  that  all  the  property  of  any  kind 
which  she  may  own  at  her  death  is  to  be  equally  divided  be- 
tween her  heirs  and  the  heirs  of  testator,  show  such  intention 
to  exclude  her  from  the  homestead  and  after-acquired  real 
estate  to  put  her  to  an  election  between  the  two.^'* 

But  where  testator  has  so  disposed  of  his  property  by  will 
that  some  provision  of  the  will  will  be  defeated  if  the  widow 
is  given  both  the  property  devised  to  her  by  will  and  the 
homestead,  the  widow  must  elect  between  her  rights  under 
the  homestead  law    and  her  rights  under  the  will.^^ 

§717.     Election   between   general   property   rights   and   devises 
by  will. 

While  election  generally  arises  in  cases  where  testator 
has  attempted  to  deprive  his  surviving  spouse  of  dower,  cour- 
tesy, community  interests,  homestead  rights,  or  other  estates 
or  interests  in  property,  growing  out  of  the  marriage  rela- 
tion, it  may  arise  in  any  case  where  testator  disposes  of  prop- 
erty by  will  to  A,  and  gives  A's  property  to  B.  Thus,  a  co- 
tenant  in  certain  real  estate  by  devising  such  real  estate  to 
some  one  other  than  his  co-tenant,  and  then  giving  such  co- 
tenant  other  property  by  will,  puts  co-tenant  to  an  elec- 
tion between  retaining  his  original  interest  in  such  real  estate 
or  accepting  the  benefits  of  the  will.^^ 

Such  title  is,  however,  an  equitable  title  merely,  and  under 
the  recording  statutes  can  not  be  asserted  against  a  bona  fide 
purchaser  or  mortgagee  who  relies  upon  the  state  of  the  legal 
title  as  the  same  appears  on  the  record.^'^ 

was   held  that   the   widow's   accept-  G41 :    Carr   v.    Carr,    177    111.    454; 

ance    under    the    will    gave    her    an  Burgess     v.    Bowles,    99     Mo.    543 ; 

estate    in    property    which    differed  Wells    v.    Congregational    Church, 

from    her    prior    homestead    estate,  63  Vt.   116;    Blackmer's   Estate,   60 

in    that    it    was    not    terminated    by  Vt.  46. 

her  abandoning  it.)  se  Brossenne   v.    Schmitt,   91    Ky. 

The    latter    view    was    taken    in  465 :    Brown    v.    Brown,    42    Minn. 

Nichols   V.    Lancaster    (Ky.)     1896,  270:    Ide    v.    Clark.    5    Ohio    C.    C. 

32  S.  W.  676.  239:   Huston  v.  Cone,  24  O.  S.   11; 

34  Schorr  v.   Etling.   124   Mo.   42.  Hibbs    v.    Insurance    Company,    40 

35  Warren    v.    Warren,     148    111.  O.   S.  543. 


LAW    OF    WILLS. 


857 


So  a  devise  of  property  to  the  husband  of  testatrix,  together 
with  a  devise  after  his  death  of  her  estate  and  his  to  their 
heirs  in  equal  shares,  makes  it  necessary  for  the  husband  to 
elect  whether  to  retain  his  own  property  or  to  take  under  the 

will.=^» 

Where  a  trustee  bequeaths  his  own  property  to  the  cestm 
que  trust,  and  bequeaths  trust  property  to  another,  the  cestui 
que  trust  must  elect  whether  to  assert  the  trust  or  take  under 

the  will.3^ 

A  provision  that  designated  persons  may  purchase  from  tes- 
tator's estate  certain  property  at  a  designated  price,^*^  or  a 
provision  that  the  devisee  of  certain  property  shall  care  and 
provide  for  another,^ ^  creates  a  case  for  election. 

But  where  the  provisions  of  the  will  are  not  inconsistent  with 
the  assertion  by  the  beneficiary  of  property  interests  in  testator's 
estate,  such  beneficiary  can  not  be  put  to  an  election  between 
waiving  his  pre-existing  interests  in  testator's  estate  and  tak- 
ing under  the  will."*^ 

And  the  necessity  for  the  election  must  appear  upon  the 
face  of  the  will  and  can  not  be  shown  by  any  extrinsic  evi- 
dence.43  xhus  a  devisee  of  certain  lands  of  testator  may 
claim  an  interest  in  part  or  all  of  such  land  under  a  contract 
of  sale  with  testator,^-*  or  under  a  deed  from  testator.^s 

And  a  son  of  testator  whose  debts  to  his  father  have  been  re- 
leased bv  will  may  claim  that  certain  land  transferred  by  him 
to  his  father,  by\n  instrument  on  its  face,  a  deed,  was  in 
reality  mortgaged  to  secure  the  debts  which  were  released  by 


37Hibbs  V.  Insurance  Company, 
40  O,  S.  543. 

38  Allen  V.   Boomer,  82  Wis.  364. 

39  Hyatt  V.  Vanneck,  82  Md.  465. 

40  Bayer  v.  Walsh,  166  Pa.  St. 
38;  (in  such  a  case  if  the  benefi- 
ciaries elect  to  purchase  the  prop- 
erty they  take  under  the  will  and 
not  as  vendees). 

41  Huhlein    v.    Huhlein,    87    Ky. 

247. 

42  Sherman    v.    Lewis,    44    Minn. 


107;  Hitchcock  v.  Genesee  Probate 
Jud.i^'e,  99  Mich.  128;  Tompkins  v. 
Merriman,  155  Pa.  St.  440;  Beirne 
V.  Beirne,  33  W.  Va.  663. 

43  Sherman  v.  Lewis,  44  Minn. 
107. 

44  Mills.  V.  McCaustland,  105  lo. 
187;  Brownficld  v.  Brownfield,  151 
Pa.  St.  505. 

45  Hattersley  v  Bissett,  50  N.  J. 
Eq.    577. 


858  LAW    OF    WILLS. 

will,  where  such  property  is  not  specifically  conveyed  by  the 

will.^« 

A  bequest  of  the  same  amount  as  that  provided  for  in  an 
ante-nuptial  contract,  has  been  held  to  be  in  lieu  of  such  ante- 
nuptial contract,  and  to  put  the  widow  to  her  election.^ ^ 

But  where  the  will  gave  much  less  than  the  ante-nuptial 
contract,  and  testator's  estate  had  increased  considerably  after 
his  marriage,  the  bequest  was  held  to  be  in  addition  to  the 
ante-nuptial  contract,  and  the  widow  was  not  put  to  her  elec- 
tion.^s 

§718.     Election  to  take  property  in  specie  free  from  power  of 
sale. 

Where  a  power  of  sale  or  conversion  is  given  for  the  benefit 
of  certain  desig-nated  persons,  such  persons  may,  at  their  elec- 
tion, take  the  property  in  specie,  w^here  the  rights  of  others 
will  not  be  interfered  with.'*^  And  where  the  executor,  upon 
whom  a  discretionary  power  of  sale  was  conferred,  the  pro- 
ceeds to  go  to  the  children  of  testator,  decided  not  to  exer- 
cise such  power,  the  children  acquired  such  an  interest  in 
the  property  covered  by  the  power  that  they  might  convey  the 
same  to  one  of  their  co-tenants.^^ 

The  control  and  management  of  the  realty  for  three  years 
after  the  death  of  testator,  and  the  commencement  of  a  par- 
tition suit,  are  not  such  acts  as  show  an  election  to  take  free 
from  the  power  of  sale  ;^^  nor  is  an  incomplete  and  unex- 
ecuted agreement  between  the  Ijeneficiarics  to  take  the  prop- 
erty without  sale  such  election.^- 

46  Tompkins  v.  Merriman,  155  Pa.  210;  Huber  v.  Donoghue,  49  N.  J. 
St.  440.  Eq.    125. 

47  Graves  v.  Mitchell,  90  Wis.  so  Battersby  v.  Castor,  181  Pa. 
306.  St.    555. 

48Taft   V.    Taft,    16,3    Mass.    467.  si  Mellen    v.    Mellen,    139    N.    Y. 

49  People   V.    Lease,    71    111.    Api"  210. 

380 ;    Bowen  v.    Swander,    121    Ind.  52  Baldwin  v.  Vreeland,  43  N.  J. 

164;    Mellen   v.   Mellen,   139   N.    Y.  Eq.   446. 


LAW    OF    WILLS.  859 

§719.     Who  may  elect. 

The  right  of  election  is  ordinarily  purely  a  personal  right, 
and  can  be  exercised  only  by  the  party  entitled  thereto  in  per- 
son. A  widow's  right  of  election  can  not  be  exercised  after 
her  death  by  her  personal  representatives  or  her  heirs.^"^ 

Thus,  where  a  father  had,  under  a  will,  the  right  to  take 
certain  property  as  realty,  or  to  take  the  proceeds  thereof,  it 
was  held  that  where  he  did  not  exercise  such  right  during  his 
lifetime  his  legatee  can  not  exercise  it.^*  ISTor  can  a  creditor 
of  the  beneficiary  elect  for  him,  as  by  levy  and  sale  of  prop- 
erty.^ ^ 

Under  special  circumstances,  however,  the  right  of  election 
has  been  exercised  by  others  than  the  beneficiary  to  whom  it 
primarily  belonged.  As  for  instance,  where  such  beneficiary 
is  mentally  incapable  of  making  such  election,  it  is  usually 
provided  that  his  guardian  may  elect  for  him,  subject  to  the 
approval  of  the  court  appointing  such  guardian,  or  that  such 
court  itself  may  elect.^*' 

Where  guardian,  who  was  also  executor,  petitioned  the  court 
for  direction  in  making  election  for  his  ward,  was  advised  to 
act  as  if  he  were  not  executor,  and  at  once  elected  not  to  take 
under  the  will,  it  was  held  that  this  was  a  sufficient  approval 
of  such  election  by  the  court,  and  omission  to  record  such  ap- 
proval formally  might  be  supplied  by  a  nunc  pro  tunc 
order.^'^ 

Where  one  who  had  a  right  of  election  to  purchase  certain 
real  estate  at  a  designated  price,  and  orally  expressed  his  in- 


53  Fosher  v.   Guilliams,    120   Ind.  the  original   legatee   in   his  lifetime. 

172;    Penhallow  v.   Kimball,   61    N.  It     was     held     that     his     executors 

H.    596;     Page    v.    Eldredge    Public  could   not   change   such   election   by 

Library    Association     (N.    H.).    45  their  own  acts. ) 

Atl.  411;  Millikin  v.  Welliver,  37  ss  Cunningham  v.  Simpson,  1  Cin- 
O.  S.  460;  Anderson's  Estate,  185  cinnati  L.  B.  (Ohio),  173;  so  Car- 
Pa.  St.  179;  Church  v.  McLaren,  85  ter  v.  Harvey  (Miss.),  25  So.  862. 
Wis.   122.  ffi  Bassett    v.    Durfee,    87    Mich. 

R4  Howell   V.   Craft,   —   N.   J.   —  167;     Penhallow   v.   Kimball.   61   N. 

(1894)  ;  27  Atl.  485.     (In  this  case,  H.   596. 

however,  the  right  of   election   had  -'^  Bassett    v.    Durfee,    87    Mich. 

been    exercised   to    some    extent    by  167. 


860  LAW    OF    WILLS. 

tention  to  take  such  purchase,  but  did  not  make  formal  elec- 
tion by  reason  in  part  of  continued  ill  health,  it  was  held  tluit 
his  children  might  elect  upon  his  death.^^  Where  bj  accident 
the  will  was  concealed  during  the  life  of  the  widow,  and  she  had 
no  opportunity  for  election,  a  court  of  election  has  exercised  the 
right,  of  election  for  her  after  her  death.^^ 

This  result  is  reached  occasionally  by  a  somewhat 
different  reasoning.  It  is  expressed  by  saying  that  the  person 
having  the  right  of  election,  who  dies  before  making  any  elec- 
tion in  fact,  will  be  presumed  to  have  elected  the  more  valuable 
right,  where  one  is  clearly  more  valuable  than  the  other.^° 

Where  by  reason  of  the  incapacity  of  the  beneficiaries  to 
make  election,  the  court  elects  for  them,  the  court  will  look 
only  to  the  benefit  of  those  who  are  incapacitated  to  make  the 
election,  and  will  not  consider  what  election  will  be  beneficial 
to  other  parties  in  interest.*^^  A  right  of  election  which  may 
be  exercised  by  the  option  of  several  can  not  be  exercised  by 
the  concurrence  of  any  less  than  that  number.^-  Thus,  where 
the  will  provides  for  the  conversion  of  certain  real  estate  into 
money  for  the  benefit  of  certain  designated  persons,  the  court 
will  not  allow  any  number  less  than  all  of  the  whole  to  take 
such  property  as  real  estate.*^^  A  gift  to  be  divided  among 
several  conferring  separate  and  distinct  interests  may  be  ac- 
cepted or  rejected  by  each  individual  separate  from  the 
others.^^ 

§720.     How  election  is  effected  at  common  law. 

In  the  absence  of  a  statute  requiring  the  filing  of  a  written 
election,  and  making  such  a  mode  of  election  exclusive,  it  is  well 
settled    that    a    party    who    has    right  of    election,    may  ex- 

38  Parker  v.  Seeley,  56  N.  J.  Eq.  62  Brown    v.    ]\liller,    45    W.    Va. 

110.  211. 

59  Spruance  v.  Darlington,  7  Del.  «•''  Howell  v.  Craft,  —  N.  J.  Eq. 
Eq.  Ill   (1895),  30  Atl.  663.  (1894),  27  Atl.  485:  BYO^vn  v.  Mil- 

60  Merrill     v.     Emery,     10     Pick.  ler,  45  W.  Va.  21 1. 

Mass.   507 ;   Yawger  v.   Yawger,    10  6*  Webster    v.   Wiggin,   19    R.   I. 

Stew.  Eq.  216.  73;   28  L.  R.  A.  510. 

61  Spruance  v.  Darlington,  7  Del. 
Eq.  Ill   (1895).  30  Atl.  663. 


LAW    OF    WILLS.  °"^ 


ercise  sucli  riglit  as  well  by  his  conduct  as  by  any  written 
election  tiled  in  the  propef  conrt.«^  What  facts  and  what 
conduct  constitute  an  election  is,  however,  a  question  upon 
which  there  is  considerable  diversity  of  judicial  opinion. 

Where  the  beneficiary  attempts  to  retain  and  enforce  both 
inconsistent  rights,  such  conduct  does  not  operate  as  an  elec- 
tion of  either.'^'^  But  where 'his  conduct  is  such  as  is  incon- 
sistent with  the  assertion  of  one  of  the  two  conflicting  rights 
he  is  held  to  have  thereby  made  an  election  to  take  the  other. 
The  question  of  what  conduct  is  inconsistent  with  one  of  the 
conflicting  rights  is  taken  up  in  detail  in  the  following  sections. 

§721.     Effect  of  qualifying  as  executor. 

In  some  jurisdictions  it  is  said  that  one  who  offers  a  will 
for  probate  and  qualifies  as  executor  has  thereby  elected  to 
take  under  the  will;  and  that  such  acts  are  so  final  and  definite 
an  election  that  he  can  not  claim  any  interests  in  opposition 
to  the  will^'-^  Where  qualification  as  executor  operates  as 
election  the  reason  given  for  the  doctrine  is  that  the  executor 
takes  oath  to  execute  the  provisions  of  the  will,  and  thereby 
renders  it  impossible  for  him  to  elect  to  take  in  opposition  to 
its  provisions.^«  In  some  states  this  doctrine  is  entirely  re- 
pudiated, and  the  acts  of  causing  a  will  to  be  probated  and 
qualifying  as  executor  do  not  constitute  an  election. 

65  Cunningham's   Estate,   137   Pa.  312;    Allen   v.    Allen     121    N.   Car^ 

^  3->8-    Mendenhall   v.   Mendenhall,   8 

^';o  In  Defreese  V.Lake,  109  Mich.  Jones,    287;     Syme    v.    Badger,    92 

415-32  L.  R.  A.  744,  it  was  said  N.   Car.   70G ;    Allen  v.  Boomer,  8- 

to   be   a    question   of    fact   whether  Wis.  364. 

an  occupant  of  property  had  taken  ''^  Allen    v.    Allen,    121    N.    Car. 

possession  of  the  property  under  a  328.  ^^^   ^^  ^^^^_^^^^    ^^^^^^^   ^   ^^^ 

devise  or  under  a  tax  deed^  ^    ^^^    ^    ^     3^^ .    -, 

OT  Huston   V.   Cone,   24   0^  S^  11.  63^-                  ^^^     ^^^^^^^,^  ^^^^^^^^ 

csXimmons  V.  Westfal     33  O.  S-  Law             P                   ^    ^^^^^   ^^^ 

213;  Cunningham's  Estate,  137  Pa.  U)-3   io-  ^    '            o^    «     W     1121 


St.  621. 

69  Stone  V.   Vandermark,   146   111. 


Civ.    App.    1894;    25    S.    W.    1121. 


862 


LAW    OF    WILLS. 


§722.     Taking  part  in  litigation. 

One  who  acts  in  litigation  over  the  subject  matter,  claiming 
title  thereto  under  the  will,  is  held  to  make  his  election  thereby 
to  take  under  the  will  and  to  waive  rights  inconsistent  there- 
withJ^  Where  the  part  taken  in  litigation  is  such  as  to  show 
clearlv  that  no  electon  is  intended,  the  court  will  not  arbi- 
trarily treat  such  conduct  as  an  election.^^ 

An  election  may  also  be  shown  by  the  report  of  the  ex- 
ecutor, who  is  also  the  beneficiary  to  exercise  the  election, 
recommending  a  disposition  of  testator's  property,  which  neces- 
sarily involves  the  enforcement  of  all  of  the  provisions  of  the 
wiU.'^^ 

§723.     Election  by  taking  possession  of  property. 

Where  the  beneficiary  has  no  right  to  the  possession  and 
occupation  of  certain  property,  except  by  virtue  of  the  pro- 
visions of  testator's  will,  his  conduct,  in  entering  into  pos- 
session of  such  property  and  using  and  occupying  it  as  his  own, 


72  Hunkypillar  v.  Harrison,  59 
Ark.  453.  (The  election  was  held  iu 
this  case  to  be  made  by  filing  an 
answer  in  a  suit  to  set  aside  a 
conveyance  of  real  estate  by  tes- 
tatrix, claiming  title  to  such  real 
estate  as  her  devisee  and  receiving 
the  proceeds  of  such  suit  without 
accounting  therefor.)  Gullett  v. 
Farley,  164  111.  506;  Davis  v.  Bad- 
lam,  105  Mass.  248;  (election  ef- 
fected by  appealing  as  devisee  from 
an  award  for  damages  for  taking 
the  realty  devised  under  -proceedings 
in  eminent  domain).  Smith  v.  But- 
ler, 85  Tex.  126;  (election  effected 
by  applying  to  have  the  property 
delivered  to  the  custody  of  such 
person  as  beneficiary).  In  Gul- 
lett V.  Farley,  164  111.  566,  the  court 
said  that  filing  a  bill  for  partition 
as  devisee  was  "the  very  best  and 
most  notorious  election." 


73  Carpenter  v.  Strange,  141  U. 
S.  87.  (Where  testator  devised  to 
cestui  que  trust  a  tract  of  land 
upon  condition  that  she  renounce 
all  claims  upon  his  estate  for  the 
trust  funds,  and  the  cestui  que 
trust  brought  suit  against  testa- 
trix to  have  the  land  devised  de- 
clared to  be  hers  free  from  any  con- 
dition, and  to  have  other  poperty 
of  testator  subjected  to  the  trust, 
it  was  held  that  such  act  did  not 
amount  to  an  election.) 

74  Craig  V.  Conover,  80  lo.  355. 
( So  an  executor's  report  w^hicli 
shows  that  the  property  disposed 
of  by  will  was  surrendered  by  the 
grantee  of  the  widow,  may  be  used 
to  show  the  election  of  such  widow 
to  take  under  the  will.)  Pellizzarro 
V.  Reppert,  83  lo.  497. 


LAW     OF    WILLS. 


863 


will  be  held  to  be  a  sufficient  indication  of  his  purpose  to  take 
under  the  will  to  constitute  an  electionJ^ 

Where  the  beneficiary  has  subsequently  sold  such  prop- 
erty,"°  or  leased  such  property,  "^  such  conduct  still  more 
clearly  shows  an  election.  An  election  may  also  be  made  by  a 
refusal  to  occupy  the  property  given  by  will,  especially  where 
such  occupancy  is  made  a  condition  to  the  enjoyment  of  the 
devise.^^  Where,  however,  the  occupancy  of  the  property  by 
the  beneficiary  is  not  necessarily  referable  to  the  will,  but  may 
be  referred  as  well  to  his  pre-existing  title,  such  occupancy  will 
not  constitute  an  election  either  to  take  under  the  wilF^  or 
against  it.^'*  So  the  receipt  of  property  not  disposed  of  by 
will,  which  the  recipient  would  have  taken  if  testator  had 
died  intestate,  is  not  an  election  to  take  under  the  will.^^ 

Where  different  pieces  of  property  are  given  to  one  by  will, 
his  acceptance  of  one  does  not  bind  him  to  accept  the  others. 
Hence,  where  testator  gave  a  legacy  to  A  without  restriction, 
and  some  realty  charged  with  tlie  pa^mient  of  legacies  to 
others,  A's  acceptance  of  the  legacy  was  not  an  election  to 
take  the  realty  and  pay  the  legacies.^^ 

75  Smith's   Estate,   108   Cal.   115;  ^7  Wilson    v.    Wilson,    145    Ind. 

Bennett   v.    Packer,   70   Conn.    357;  659. 

(property  used  and  enjoyed  for  ten  78  Grindem     v.    Grindem,    89     lo. 

years).     Fry  v.  Morrison,   159   111.  295. 

244;    (property  used  for  six  years).  Such  conduct  was  held  to  be  an 

Wilson    V.    Wilson,    145    Ind.    659;  election   to   take  a   designated   sum 

(property     used     for     ten     years).  of   money   which   was   given    as   an 

Davidson    v.    Davis,    86    Mo.    440:  alternative  to  the  homestead. 

Hovey    v.    Hovey,    Gl    N.    H.    599;  79  Smith's   Estate,    108   Cal.    115: 

(property  used  for  nine  years).  Hill  Hunter  v.  Hunter,  95   lo.   728;     64 

V.  Hill,   G2  N.  J.  L.  442;    Davison  ^T.  W.  566;  Mayo  v.  Tudor,  74  Tex. 

V.  Davison,  15  N.  J.  L.  235:  Baxter  471. 

V.  Bowyer,  19  0.  S.  490;  Cannon  v.  so  Frankes.  v.  Wiegand,  97  lo. 
Apperson,  14  Lea,  553;  (property  704;  66  N.  W.  918;  Mellon  v.  Mel- 
used  for  twelve  years).  Chace  v.  Ion,  139  N.  Y.  210. 
Gregg,  88  Tex.  552 ;  Meech  v.  Meech,  si  Pryor  v.  Pendleton,  92  Tex. 
37  Vt.  414;  Wells  v.  Congregational  384;  (not  affected  on  this  point  by 
Church,  63  Vt.  110;  Drake  v.  Wild,  reversal  on  rehearing)  ;  49  S.  W. 
70  Vt.  52;  (property  occupied  for  212;  Williams  v  Emberson  (Tex. 
thirteen    years).  Civ.  App.),  55  S.  W.  595;   see  Sec. 

76  Smith's   Estate,   108   Cal.   115;  326. 

Chace  v.  Griggs,  8  Tex.  552.  82  Collett  v.   Cook,   3   Ohio   C.   C. 

119. 


864  LAW     OF     WILLS. 

§724.     Keceipt  of  money  as  election. 

A  receipt  of  money  given  by  a  will  may  be  unquestionably 
an  election  where  such  money  is  retained  and  where  its  pay- 
ment can  be  referred  only  to  the  provisions  of  the  will.^^  But 
a  payment  of  money  which  might  as  well  be  referred  to  some 
other  obligation,^^  or  to  a  gift/^^  will  not,  of  itself,  constitute 
an  election  to  take  under  the  will.  It  is  even  held  that  the 
mere  receipt  of  money  paid  as  a  legacy  does  not  constitute  an 
election,  since  the  party  receiving  the  money  may,  by  re- 
paying the  same,  put  all  parties  in  interest  in  statu  quo.^''^ 
And  where  a  widow  accepted  from  one  who  was  named  as 
executor,  but  not  qualified  as  such,  his  promissory  note  for  a 
legacy  which  was  given  in  the  Avill  in  lieu  of  her  dower,  it 
was  held  that  this  did  not  amount  to  such  an  election  as  to 
prevent  her  from  claiming  her  dower  if  she  did  not  receive 
the  legacy.^'^  Acquiescence  in  the  sale  of  realty  in  accordance 
with  the  provisions  of  the  will  operates  as  an  election.^* 

§725.     Effect  of  election. — Where  election  not  necessary. 

It  sometimes  happens  that  through  a  misapprehension  as  to 
the  legal  rights  of  the  parties  in  interest  some  party  who  is 
entitled  to  two  or  more  distinct  rights  vdll  think  that  he  is 
bound  to  elect  between  them,  and  will,  accordingly,  make  a 
statutory  or  a  common  law  election.  In  STich  a  case,  where 
no  bona  fide  purchaser  has  been  misled  by  such  conduct,  the 

83  Martien  v.  Norris,  91  Mo.  465 ;  of   the   will.      It   was   held   that   the 

Bryant   v.    McCune,   49   Mo.   546.  conduct  of  the  husband  in  accepting 

S4  Thome    v.    Thorne     (1893),    3  the    check    and    presenting    it    for 

Ch.    196.  payment    did    not    amount    to    an 

85  May    V.    Jons,  87  lo.  188.      (A  election  to  take  under  the  will.) 

will    was    executed    givng   a    legacy  s«  English  v.  English,  3  N.  J.  Eq. 

to    the   husband   of   testatrix.      Be-  504 ;  Young  v.  Young,  51  N.  J.  Eq. 

for  the  execution  of  the  will,  testa-  491. 

trix  gave  her  husband  a  check  for  8^  Hill  v.  Hill.  88  Ga.  612. 

the    same    amount    as    the    legacy.  8s  Cunningham's   Estate,    137   Pa. 

The    chock    was    not    presented    for  St.  621. 
payment   until   after   the   execution 


I.AW     OF     WILLS.  ^"^ 

election  to  take  one  of  these  rights  will  have  no  effect  as  a 
renunciation  of  the  other.^^ 

This  doctrine  rests  upon  the  ohvious  reason  that  even 
an  express  promise  on  the  part  of  the  person  assuming  to  make 
such  election  to  waive  all  of  his  property  rights  except  such  as 
he  elects  to  take,  would  be  without  consideration,  and  void. 
There  is  nothing  in  the  conduct'of  the  parties  to  affect  a  trans- 
fer title  directly;  and  where  no  innocent  third  person  has 
acted  in  reliance  upon  such  conduct  there  is  no  ground  for 
alleging  an  estoppel. 

§726.     Where  election  necessary. 

In  cases  where  inconsistent  rights  vest  in  a  designated  per- 
son,  and  the  doctrine  of  election  applies,  the  effect  of  such 
eleJtion  upon  the  part  of  such  person  to  take  a  specified  right 
operates  as  a  renunciation  of  the  incousistent  right,  and  is  a 
bar  to  any  subsequent  assertion  of  any  legal  right  inconsistent 

therewith.^*^ 

A  partial  election  is  of  course  an  impossibility;  that  is,  the 
beneficiary  can  not   accept   in   part  the   benefits  of   the   will 

89  Richards    V.    Richards,    90    lo.  247;     and   where   the   ^yidow   elects 

606:     Baldwin  v.  Hill,  97   lo.  586;  to  take  a  provision  in  lieu  of  dow- 

66   N    W.   89;    Hall  v.   Smith,    lO:]  er,    it    bars    her    right    to    enforce 

Mo    289;  Sumerel  v.  Sumerel,  34  S.  dower   in   property  which   her   hus- 

^^^     gg  band   had    disposed   of   by   warrant 

''s'i)' Baldwin    v.    Hill,    97    lo.    586;  deed  during  coverture,  although  of 

66  N    W    889;  Huhlein  v.  Huhlein,  course  such  property  was  not  con- 

87  Ky    247-   Brossenne  v.  Schmitt,  veyed   by   will.      Fairchild   v.   Mar- 

91  Ky"465;  Knight  vMahoney,  152  shall,    42    Minn.    14;       nor    can    a 

Mass    5'>3-    9   L.  R.  A.   573;   In  re  widow   to   whom    several    pieces   of 

Smith,    60'  Mich.    130;      Bro^^m    v.  property  are  given  by  will,  one  of 

Brown,  42  Minn.  270;   Fairchild  v.  which  was  stated  to  be  m  lieu  of 

Marshall,  42  Minn.  14;  In  re  Mar-  dower,    take    her    dower    and    the 

chemer's  Estate,   140   Pa.    St.   544;  pieces  of  property  given  her  bj    the 

Colvert    V      Wood,     93    Tenn.    454.  will   other  than  the  one  which  was 

Thus    where    testator    devised    land  expressly    stated    to    b«    ^^    1;^"    '^ 

to    his   wife,    and   gave   by   will   to  dower.     In  re  Smith,  60  Mich.  10. 

another    an    insurance    policy    pay-  So  where  a  husband  accepts  under 

able  to  his  wife,  it  was  held  that  his    wife's    will,    he    is    barred    oi 

her    acceptance    of    the    devise    pre-  rights  of  courtesy  inconsistent  with 

eluded  her  from  collecting  the  pol-  such  will.     Weller  v.  NoEEsinger,  5. 

iey.      Huhlein    v.    Huhlein,    87    Ky.  Nob.  455. 


866  LAW    OF    WILLS. 

and  in  part  retain  inconsistent  rights.^^  Thus,  a  widow 
can  not  take  under  the  will  as  to  the  real  property  and  reject 
the  will  as  to  personal  property  j^^  nor  reject  the  will  as  to 
testator's  omi  property  and  take  under  it  as  to  property  over 
which  he  had  power  of  appointment.^^  But  the  complicated 
question  presented  in  discussing  the  effect  of  election  really 
involves  the  same  principle  as  that  of  the  necessity  of  elec- 
tion; that  is,  whether  the  several  rights  are  so  inconsistent 
that  the  claims  can  not  be  all  insisted  upon. 

§727.     Full  knowledge  of  rights  necessary  in  common  law  elec- 
tion.— Right  to  revoke  election. 

In  a  common  law  election  the  party  whose  acts  and  con- 
duct are  relied  upon  as  an  election  binds  himself  only  when 
he  acts  mth  adequate  knowledge  of  his  rights  and  the  sur- 
rounding circumstances  which  modify  and  effect  their  value.®* 

"Nothing  but  unequivocal  acts  will  prove  an  election,  and 
they  must  be  done  with  knowledge  of  the  party's  rights  as  well 
as  of  the  circumstances  of  the  case."  ®^ 

One  who  has  elected  without  full  knowledge  of  the  me- 
terial  facts  may  subsequently  change  his  original  intention  and 
alter  his  election  unless  the  situation  has  so  changed  that  this 
can  not  be  done  without  prejudice  to  the  subsequently  acquired 
rights  of  others.^^ 

Where  an  election  is  made  at  common  law  under  a  mistake 
li  fact  it  may  be  revoked  "unless  the  situation  has  so  changed 
since  her  election  that  it  can  not  be  done  without  prejudice 

91  Codrington  v.  Lindsay,  L.  R.,  8  »*  Clark  v.  Hershy,  52  Ark.  473 : 

Ch.  App.  578 ;    Bristow  v.  Warde,  2  Goodrura  v.  Goodrum,  56  Ark.  532 ; 

Ves.    Jr.    336;     Cooper    v.    Cooper,  Spangler   v.   Dukes,    39   0.   S.   642; 

L.  R.  7  Eng.  &  lo.  A:  C.  53;  Herbert  Medill   v.    Snyder    (Kan.),   58    Pao. 

V.   Wren,    7    Cranch    (U.    S.),    370;  962:      Geiger    v.     Geiger     (S.     C.) 

Schley  V.  Collis    (U.   S.  C.  C.)    Ga.  (1900),   35   S.  E.   1031. 

47  Fed.  Rep.  250;    13  L.  R.  A.  567:  95  Woodburn's  Estate,  138  Pa.  St, 

In  re  Smith,  60  Mich.  136;  Farnum  606;   so  Bierer's  Appeal,  92  Pa.  St. 

V.   Bryant,    34   N.    H.    9;     Allen   v.  266;    Cox  v.  Rogers.,  77  Pa.  St.  160. 

Boomer.  82  Wis.   364.  o"  Wake  v.  Wake,  1  Ves.  Jr.  335 : 

92Bloss's  Estate,   114  Mich.   204.  Hill  v.  Hill,  62  N.  J.  L.  442;  Young 

93Fiske  V.   Fiske   173  Mass.   413.  v.  Young,  51  N.  J.  Eq.  491. 


LAW    OF    WILLS. 


867 


to  the  subsequently  acquired  rights  of  others."^^  Where,  how- 
ever, property  is  accepted  under  the  will  the  person  receiving 
it  is  bound  to  show  that  he  did  so  under  a  mistake  of  fact. 
In  the  absence  of  such  explanation  his  conduct  amounts  to  an 
election.*'*  In  order,  however,  to  change  an  election  once  made 
the  other  parties  in  interest  may  be  placed  in  statu  quo.  This 
can  be  done  either  by  returning  the  property  or  by  making 
adequate  compensation  therefor.^^ 

In  jurisdictions  where  formal  written  election  is  not  re- 
quired by  statute  the  filing  of  a  written  election  is  only  val- 
uable as  preserving  evidence  of  the  fact  of  tlie  common  law 
election;  and  a  beneficiary  who  signs  such  an  election  under 
a  misapprehension  of  facts  may  alter  such  election.^  "^  Where, 
however,  a  beneficiary  receives  and  retains  property  given  by 
the  will,  without  any  explanation  of  his  conduct  in  so  doing, 
it  is  treated  as  a  final  election.^^^  Mere  delay  in  inquiring 
into  one's  rights  does  not  amount  to  a  final  election,  at  least 
where  a  valid  excuse  can  be  sho^vm  for  such  a  delay.^^^ 

§728.     Statutory  election. — When  necessary. 

In  many  states  the  method  of  election  between  rights  of  dower 
or  curtesy  and  rights  given  by  the  will  of  a  deceased  spouse 
is  controlled  largely  by  statute.  These  statutes  are  usually 
held  to  require  an  election  only  in  cases  when  by  the  prin- 

97Macknet  v.  Macknet,  29  N.  J.  St.  451;   Cunningham's  Estate,   137 

Eq.   54,  quoted   in   Hill   v.   Hill,   02  Pa.  St.  621 ;  Woodburn's  Estate,  138 

N.  J.  L.  442.  Pa.  St.  006 ;    ( in  this  ease  there  was 

98  Davison  v.  Davison,  15  N.  J.  L.  no    fraud    or    misrepresentation    of 

235.  any    kind,    the    parties    in    interest 

89  Young  V.  Young,  51  N.  J.  Eq.  being   equally   ignorant   of   their   re- 

491;     (in   this   case   the   court   said  spective    rights.      The    widow    was 

in   speaking  of   the   beneficiary   who  held  not  to  be  bound  by  her  written 

wished  to  change  his  election  :     "He  election  made  in  ignorance  of  such 

is    permitted,    after    having   claimed  facts). 

under  the  will,  to  claim  against  the  loi  Hill  v.  Hill,  02  N.  J.  L.  442. 

will  if  out  of  the  claim  against  the  102  Clark     v.     Horshey,     52     Ark. 

will  he  will  make  compensation  for  473:   (delay  in  this  case  was  caused 

what    he    has    claimed    under    the  by  the  Civil  War  in  consequence  of 

^[]\;')  which    the   courts   were   closed   and 

100  Bradford  v.  Rents,  43  Pa.  St.  the    husband    of    devisee    fled    from 

474;    Kennedy  v.   Johnston.   65   Pa.  his    home). 


868  LAW    OF    WILLS. 

ciples  of  equity  an  election  is  necessary;  that  is,  when  the 
devisee  is  required  to  choose  between  rights  given  by  the  will 
and  inconsistent  rights  by  the  law.^^^ 

A  question  occasionally  discussed,  but  not  settled  by  de- 
cisions of  courts  of  last  resort,  arises  under  the  peculiar  word- 
ing of  some  of  the  statutes  on  the  subject  of  election.  By  the 
terms  of  some  of  these  statutes  a  widow  or  widower  for  whom 
"any  provision"  is  made  by  the  will  is  required  to  elect  whether 
to  take  under  the  will  or  under  the  law.  Does  such  a  provision 
make  election  necessary  where  the  Avill  gives  rights  in  addition 
to  those  given  by  the  law,  and  not  in  lieu  of  them  ?  The 
literal  wording  of  such  statutes  seems  to  require  a  written  elec- 
tion in  any  case,  although  an  election  to  take  both  the  rights 
given  by  the  will  and  those  given  by  the  law  is  an  absurdity 
upon  its  face.  Of  course  in  the  absence  of  statute,  equity  did 
not  recognize  the  doctrine  of  election  as  applying  to  such  u 
case.^*^^  So  the  'New  Jersey  statute,  requiring  written  elec- 
tion, does  not  apply  w^here  the  devise  is  to  one  in  trust  for 
the  widow.-^^^ 

§729.     At  what  time  statutory  election  must  be  made. 

The  statutes  which  require  written  election  generally  require 
that  a  notice  or  citation  issue  to  the  person  upon  whom  the 
duty  to  make  the  election  is  cast;  and  the  time  within  which 
the  election  is  made  runs  from  the  service  of  the  citation.^ '^'^ 

In  some  states  the  time  within  v.diich  the  written  election  is 
to  be  made  runs  from  the  death  of  testator  or  admission  of 
the  will  to  probate,  the  surviving  spouse  being  required  to  take 
notice  of  the  necessity  for  election  without  any  citation.^ *^''' 

103  Burgess  v.  Bowles,  99  Mo.  543.  lo^  Whited  v.  Pearson,  90  lo.  48, 

104  In  Hall  V.  Smith,  103  Mo.  289,  756  (and)  87  lo.  513;  Bowen  v. 
it  was  said  that  if  the  will  showed  Bowen,  34  O.  S.  164;  (the  refusal 
testator's  intention  to  give  property  of  the  widow  to  elect  does  not  waive 
in  addition  to  dower,  no  election  the  issuing  and  service  of  the  cita- 
is  necessary.  In  this  case,  how-  tion ;  Bowen  v.  Bowen).  Spreen  v. 
ever,   written   election   was   unneces-  Sandman,  2  Ohio  C.  C.  441. 

sary  for  other  reasons.     Pemberton  iot  Akin    v.    Kellogg,    119    N.    Y. 

V.    Pemberton,    29    Mo.    408.  441. 

105  Hill  V.  Hill,  62  N.  J.  L.  442; 
Van  Arsdale  v.  Van  Arsdale,  26  N. 
J.  L.  404. 


I^W    OF    WILLS.  869 

A  written  election  to  take  under  the  will  or  to  take  under  the 
law  must  be  filed  by  the  party  upon  whom  the  duty  of  election  is 
cast  within  the  time  limited  by  statute.  The  effect  of  the 
failure  of  such  an  election  depends,  of  course,  upon  the  stat- 
utory provisions.  Under  perhaps  a  majority  of  the  statutes 
a  failure  to  file  a  written  renunciation  of  the  provisions  of 
the  will  and  election  to  take  dower  operates  as  a  waiver  of 
dower  and  an  election  to  take  under  the  will.^°^ 

Under  other  statutes  a  failure  to  file  a  written  election  to 
take  under  the  will  is  a  waiver  of  rights  under  the  will  and  an 
election  to  take  the  rights  given  by  the  law.^^^ 

§730.     What  is  "filing"  under  statutes. 

Under  these  statutes  the  written  election  is  required  to  be 
filed  with  some  designated  court  or  official,  usually  with  the 
court  of  probate  powers  before  which  the  estate  is  being  ad- 
ministered. An  execution  of  renunciation  in  writing  has  no 
legal  effect  without  actual  filing.^  ^° 

Where  such  renunciation  is  not  in  fact  filed,  attaching  it 
to  a  pleading  as  an  exhibit  is  not  a  compliance  with  the 
statute,^  ^^  nor  is  the  act  of  depositing  it  in  a  post-office,  sealed, 
stamped  and  properly  addressed  to  the  probate  judge  a  sufii- 
cient  filing,  where  such  written  election  was  not  in  fact  re- 
ceived  and  filed  by  the  probate   judge.^^^ 

108  Sanders  v.  Wallace,  118  Ala.  in  certain  realty  were  determined, 
418;  Cribben  v.  Cribben,  136  111.  where  such  suit  was  pending  at 
609;  Warren  v.  Warren,  148  111.  his  death,  even  though  the  time  of 
641;  Fosher  v.  Guilliams,  120  Ind.  making  election  is  thereby  post- 
172;  Draper  v.  Morris,  137  Ind.  169;  poned  beyond  that  fixed  by  stat- 
Archibald  v.  Long,  144  Ind.  451;  ute.  Tracy's  Estate  (Minn.)  (1900) 
( 1896 )  43  N.  E.  439  ;  Morse  v.  Hay-  82  N.  W.  635. 

den,  82  Me.   227;   Chadwick  v.  Ta-  lo®  Everett   v.    Croskerey,    92    lo. 

tem,  9  Mont.  354;   Bassett  v.  Dur-  333;    Stilley  v.   Folger,    14   O.   610. 

fee,  87  Mich.   167;    Jones's  Estate,  no  Draper    v.    Morris,    137    Ind. 

75  Minn.   53;   Cooper  v  Cooper,  56  169;    Allen    v.    Harnett,     116     Mo. 

N.  J.   Eq.  48;    McGlaughlin  v.  Mc-  278;     Church  v.  McLaren,   85   Wis. 

Glaughlin,   43   W.    Va.    226.      Even  122. 

under    such    statutes    it    has    been  m  Draper    v.     Morris,     137     Ind. 

held,  however,  that  the  widow  may  169. 

withhold   her    election    until   a   suit  112  Allen     v.    Harnett,     IIG     Mo. 

by    which    her    husband's    interests  278. 


870  LAW    OF    WILLS. 

§731.     Can  a  written  election  be  revoked? 

After  a  surviving  spouse  has  filed  a  written  election,  either 
to  take  under  the  will  or  to  take  under  the  law,  can  such  an 
election  be  withdrawn  before  it  is  acted  upon,  or  is  the  m^re 
act  of  the  filing  conclusive  ?  Upon  this  subject  there  is  some 
difference  of  judicial  opinion,  chiefly  owing  to  the  language 
of  the  different  statutes.  The  \\Titten  election  can  certainly 
not  be  mthdrawn  without  an  order  of  the  court  before  which 
it  was  filed.^^^ 

In  some  jurisdictions  it  is  held  iJiat  such  an  election  may 
be  withdra^^^l  by  order  of  the  court  before  which  it  was  filed 
upon  showing  good  reason  therefor,  if  the  application  is  made 
before  the  election  has  been  so  acted  upon  as  to  estop  the 
party  electing  from  withdrawing  such  an  election.^  ^^ 

Where  this  view  of  the  right  of  the  party  electing  to  with- 
draw the  election  is  entertained,  the  question  of  what  is  a 
good  ground  for  withdrawing  is  quite  important  In  some 
states  false  statements  as  to  the  effect  and  consequences  of 
election  made  by  parties  interested  adversely  to  the  widow, 
are  held  to  be  less  sufficient  reasons  for  permitting  her  to 
withdraw  her  election.^  ^^ 

In  other  states  such  false  statements  are  not  treated  as  suffi- 
cient grounds  for  allo^Hng  an  election  to  be  withdra^vn,  es- 
pecially where  the  party  electing  made  no  effort  to  assert  her 
rights  from  independent  sources.^ -"^ 

In  other  jurisdictions  the  election  is  a  finality,  and  after  it 
is  once  made  and  entered  upon  the  journal  of  the  court,  can- 
not be  withdra^Ti.-^-^^ 


113  Coles  V.   Terrell,   162  111.   167.  expired.      The   court   held   that   the 
11*  Gam  V.  Gam,    13,5   Ind.   687;  probate  judge  ri.ijhtly  refused  to  en- 
Dudley  V.  Pigg,   149   Ind.   363.  tertain     the    right     of     application 
115  Garn   v.   Garn,    135    Ind.    687.  which   was    rrjade   upon    the   gound 
lie  Akin    v.    Kellogg,    119    N.    Y.  of    mistake,    intimating    that    such 
441.  relief  could  be  had  only  in  a  court 
117  Davis  V.  Davis,  11  O.  S.  386.  of  equity  powers,  and  that,  if  suf- 
(In  this  case  application  was  made  ficient    circumstances    of    fraud    or 
to  the  judge  of  probate  powers  be-  mistake    should    be    sho\vn    to    ex- 
fore  the  time  within  which  the  wid-  ist  such  court  might  order  the  entry 
ow   might   have   made   election   had  of    election    to    be    cancelled,    even 


LAW     OF     WILLS.  ^^^ 


§732.     Estoppel  to  deny  written  election. 

Even  where  the  election  is  required  to  be  in  writing  the 
parties  intereste<l  may  estop  themselves  from  denying  that  such 
election  was  properly  made,  by  conduct  inconsistent  with  the 
absence  of  a  proper  election.^^^  Thus  where  a  party  upon 
whom  the  duty  of  election  devolves  takes  possession  of  the 
property  given  by  will  and  enjoys  the  same  in  accordance  with 
the  terais  of  the  will  and  inconsistent  with  any  other  claim 
such  party  is  conclusively  bound  by  his  election  in  fact,  and 
can  not  take  advantage  of  the  fact  that  no  written  election  was 
filed,^^^  nor  can  others  who  have  acquiesced  in  such  enjoyment 
deny  that  election  has  in  fact  been  made.^^o  gut  enjoyment 
of  realty  devised  within  the  time  allowed  by  law  for  an  elec- 
tion does  not  work  an  estoppel,i2i  ^or  does  other  conduct  not 
inconsistent  with  a  subsequent  election  operate  as  an  estop- 
pel.122 

§733.     Effect  of  election  upon  rights  as  heir. 

Under  modern  statutes  of  descent  and  distribution  a  sur- 
viving spouse  is  often  an  heir  in  case  there  are  no  children 
of  decedent  or  descendants  of  such  children.  Where  such  stat- 
utes are  in  force,  an  election  to  take  the  dower  or  to  take  under 
the  will  does  not  affect  the  rights  of  the  party  electing,  as  heir 
to  property  undisposed  of  by  the  will.^- 

after  the  time  limited  for  the  on-  i^o  Stockton  v.  Wooley,  20  O.   S. 

ginal   election  had   expired,  provid-  184.                                               „  ^    o 

ed  that  new  interests  had  not  inter-  i^i  Millikin  v.  Welhver,  37  O.  S. 

vened  )  460. 

118  Rowley  v.  Sanns,  141  Ind.  179;  122  Kunnen  v.  Zurline,  2  C.  S.  C. 

Franke     v.    Weigand,   97     lo.    704;  R-    (Ohio),   440;    Cameron  v.  Cam- 

66  N.  W.   918;    Reville  v.   Dubach,  eron,  Goebel    (Ohio),  157. 

60   Kan     572:    Watson   v.   Watson.  123  Sutton    v.    Reid,    176   111.    69; 

128  Mass.  152;  TVmpson  V.  Hoop,  Collins    v.    Collins,    126    Ind.    559. 

6    0    S    480;    Stockton  v.   Wooley,  564 ;  Wall    v.  Dickins,  66  Miss.  655; 

20  O.   S.   184 :    Spreen  v.  Sandman.  Bane  v.  Wick,  14  O.  S.  505 ;  Carder 

9  Ohio  C.  C.  441.  ^-   I^'ayette   County,    16   O.    S.    353; 

"  119  Franke    v.    Weigand,     97     la.  Alexander  v.  Mendenhall,  32  O.  L. 

704;    66   N.    W.    418:    Nimmons   v.  J.  173;  1  O.  Dec.  655. 
Westfall.    33   0.   S.   213;    Baxter  v. 
Bow^^er,  19  0.  S.  490. 


872  LAW    OF     WILLS, 

§734.     Effect  of  election  upon  rights  to  allowance. 

In  some  st-ates  the  statutes  providing  for  the  settlement  of 
decedent's  estate  give  the  widow  as  an  allowance  for  temporary 
support  a  sum  of  monev  either  fixed  by  statute  or  to  be  ascer- 
tained by  the  appraisers.  Where  such  right  is  given,  it  is  not 
waived  bv  an  election  between  the  provisions  of  the  will  and 
the  right  of  dower,  unless  the  will  is  in  its  terms  either  ex- 
pressly or  impliedly  inconsistent  with  the  gi-anting  of  such 
risht.^-'*  But  where  such  an  allowance  will  defeat  the  pro- 
visions of  the  will,  as  where  the  entire  estate  is  specifically 
disposed  of,  it  was  held  that  her  election  to  take  imder  the  will 
is  a  waiver  of  her  right  to  this  fixed  allowance,^  ^^ 

^735.     Effect  of  accepting  a  provision  in  lieu  of  dower  upon  the 
right  to  a  distributive  share  in  personalty. 

Where  the  will  provides  that  a  certain  bequest  is  in  lieu  of 
dower,  and  it  is  clear  from  the  context  that  the  word  "dower" 
is  used  in  its  technical  sense,  and  refers  exclusively  to  the 
widow's  life  estate  in  testator's  realty,  the  acceptance  of  such 
a  bequest  does  not  preclude  the  widow  from  asserting  her  right 
to  the  distributive  share  of  testator's  personal  property.^  ^^  The 
word  "dower,"  however,  is  popularly  used  with  reference  both, 
to  the  life  interest  in  realty  and  to  the  distributive  share  of 
personalty.  Unless  it  clearly  appears  from  the  will  that  the 
technical  use  was  employed,  a  gift  by  will  is  assumed  to  be 
in  lieu  of  the  interest  of  the  surviving  spouse  in  both  the  real 
and  personal  estate  of  testator,  and  an  election  to  take  under 
the  will  bars  the  rights  of  such  spouse  both  as  to  realty  and 
as  to  person alty.^^'^ 

124  Shipman    v,    Keyes.    127    Ind.  i^s  Xelson   t.   Pomeroy.   64   Conn. 

3.5.3:  Pierce  v.  Pierce,  21  Ind.  App.  2.57.    (The  right  was  upheld  in  this 

184:     Whisnand     v.    Fee.    21     Ind.  case   only   as   to   personal   property 

App.    270:    Richards    v.    Hollis,    8  of   which   testator    died    intestate.  1 

Ind.  App.  353;    Collier  v.  Collier,  3  127  Schwa tken  v.   Daudt,   53   Mo. 

O.   S.   369.  App.    1:    In   re   Smith's   Estate,    60 

i25ShaflFer    v.    Shaffer,    129    Ind.  Mich  1.36:  Hazard  v.  Hazard,  19  H. 

394;     McDonald     v.      Moak     (Ind.  I.  374;  34  A.  150. 
App.)    (1900),  57  X.  E.  159. 


LAW    OF    WILLS,  873 

§736.     Effect   of    election    upon    rights    of    dower   in   intestate 
property. 

Wliether  a  surviving  spouse  who  accepts  a  gift  in  lieu  of 
dower  is  barred  from  asserting  an  interest  in  the  nature  of 
dower  or  curtesy,  or  a  right  to  distributive  share  of  personal 
property  in  the  whole  of  testator's  estate,  or  only  that  part  of 
which  testator  make«  disposition  by  will,  is  a  question  upon 
which  there  seems  to  be  some  divergence  of  judicial  opinion. 
The  question  becomes  a  practical  one  of  course  only  when 
testator  dies  intestate  as  to  some  portion  of  his  real  or  per- 
sonal property.  The  question  in  such  a  case  is,  can  dower  be 
asserted  in  such  intestate  property  ?  In  some  jurisdictions, 
aided  in  part  by  the  provsions  of  the  will  under  discussion, 
the  courts  have  held  that  the  surviving  spouse  is  not  excluded 
from  a  distributive  share  in  personal  property.-*^^  In  other 
jurisdictions,  however,  it  is  hekl  that  a  devise,  if  clearly  in 
lieu  of  dower  and  distributive  share  of  personalty,  is  a  bar  to 
the  assertion  of  such  rights  not  only  in  the  property  disposed 
of  by  will,  but  in  the  entire  estate  of  testator,  including  his 
intestate  property.^ -^ 

§737.     Effect  of  election  upon   estates  dependent  upon  interest 
given  by  will. 

When  testator  by  will  gives  to  his  surviving  spouse  a  par- 
ticular estate  in  property  which  is  either  expressly  or  impliedly 
in  lieu  of  dower  and  gives  to  other  beneficiaries  remainders 

128  Pickering  v.  Stamford,  3  Ves.  Conn.  498,  establishing  the  gen- 
355 ;  Nelson  v.  Pomeroy,  64  Conn.  eral  Connecticut  rule,  and  Xelson 
257 ;  Pinckney  v.  Pinckney,  1  Brad.  v.  Pomeroy,  64  Conn.  25",  being  a 
(N.   Y.)    269;     McDonald's   Estate,  case    where    testator    evidently    in- 

2  Ohio  X.  S.  232;  4  Ohio  Dec.  396.  tended    only   to    bar    the    dower    in 

129  Leake  v.  Watson,  60  Conn.  real  estate ;  and  it  was  accordingly 
498  :  In  re  Benson,  96  N.  Y.  499 ;  held  that  the  rights  of  his  widow 
Lee  V.  Tower,  124  N.  Y.  370;  In  re  in  his  intestate  personalty  were  un- 
Hodgman.  140  N.  Y.  421,  affirming  affected. 

69  Hun,  484:  Swihart  v.  S\^-ihart,  Tlie  Ohio  cases  are,  however,  in 
7  0.  C.  C.  338;  (the  Connecticut  absolute  conflict;  McDonald's  Es- 
eases  cited  in  the  last  two  notes  tate.  2  O.  X.  S.  232.  expressly  re- 
are  in  no  sense  inconsistent  with  fusing  to  follow  Swihart  v.  Swi- 
each  other)  :    Leake  v.  Watson,  60  hart.  7  O.  C.  C.  338. 


874  LAW     OF     WILLS. 

in  such  property  dependent  upon  the  determination  of  the  par- 
ticular estate  given  to  the  spouse,  election  of  such  spouse  to 
take  under  the  law  and  not  under  the  will  prevents  a  literal 
execution  of  the  provisions  of  the  will.  The  question,  then, 
presented  for  judicial  determination,  is  what  is  the  effect  of 
such  election  upon  the  rights  of  the  remainder  men  ? 

Where  the  enjoyment  of  possession  by  such  remainder  men 
is  postponed  until  after  the  determination  of  the  particular 
estate  of  the  widow,  solely  for  the  benefit  of  such  widow  and 
for  no  other  purpose,  the  election  of  the  widow  to  take  under 
the  law  accelerates  the  remainders,  and  the  beneficiaries  enter 
into  enjoyment  at  once.-*^^  The  fact  that  the  will  contains  a 
provision  that  the  heirs  of  any  legatee  Avho  may  be  dead  at  the 
time  of  the  decease  of  the  wife  shall  take  the  legacy  bequeathed 
to  such  legatee  does  not  prevent  distribution  of  the  legacies  at 
once,  in  case  the  wddow  elects  not  to  take  under  the  will.^^^ 
Where  a  trust  is  created  for  the  life  of  the  widow  for  the  lienefit 
of  the  widow  and  the  children,  and  upon  her  death  it  is  to  be 
paid  to  the  children  as  they  become  of  age  or  marry,  it  is  held 
that  the  refusal  of  the  widow  to  take  under  the  will  was  for  pur- 
poses of  distribution  equivalent  to  her  death;  for,  although 
the  trust  was  created  for  the  benefit  of  others  than  the  widow, 
such  others  were  the  remainder  men.^^^  But  where  a  trust  is 
created  for  the  benefit  of  the  widow  and  others,  her  share  to 
be  in  lieu  of  dower,  it  is  held  that  her  election  not  to  take 
under  the  will  does  not  defeat  the  operation  of  the  trust  for 
the  benefit  of  other  parties  in  interest.^ ^^  So  where  the  re- 
mainder is  created  in  such  terms  that  the  class  of  beneficiaries 


i30Rawling's  Estate,  81  la.  701 

Marvin    v.    Ledwith,    111    111.  144 

Slocum  V.   Hagaman,   176  111.  533 

Allen    V.    Hannum,    15    Kan.  625 


208;  Vance's  Estate,  141  Pa.  St. 
201;  12  L.  R.  A.  227;  Mcintosh's 
Estate,  158  Pa.  St.  528;  Coover's 
App.  74  Pa.  St.  143. 


Randall  V.  Randall,  85  Md.  430:  37  isi  Schultz's     Estate,     113    Midi. 

Atl.  209;  Small  v.  Marburg,  77  Md.  592. 

11;  Schultz's  Estate.  113  Mich.  592;  i32  Randall    v.    Randall,    85    Md. 

Lilly  V.  Menke,   143  Mo.  137;  Cun-  430;  37  Atl.  209. 

ningham's  Estate,  137  Pa.  St.  621;  i33  Portuondo's    Estate,    185    Pa. 

Woodburn's    Estate,     151     Pa.     St.  St.    472. 

586;    Ferguson's   App.    138   Pa.    St. 


LAAV     OF     WILLS.  '  ^^^ 


can  not  be  determined  until  the  time  of  the  death  of  the  wdow, 
her  refusal  to  take  under  the  will  does  not  accelerate  the  dis- 
tribution of  the  estate.134     where  the  surviving  spouse  refuses 
to  take  under  the  will  and  takes  under  the  law  instead,  the 
property  given  to  such  spouse  is  almost  always  taken  from 
devises  or  legacies  to  others.     Where  this  is  the  case,  the  bene- 
ficiaries, whose  rights  under  the  will  are  thus  defeated,  should 
be  compensated,  if  possible,  by  giving  them  the  property  which 
waB  devised  to  such  spouse  in  lieu  of  dower.^^^^     If  such  dis- 
appointed beneficiaries  can  not  be  compensated  out  of  the  prop- 
erty devised  in  lieu  of  dower,  he  is  then  entitled  to  be  com- 
pensated out  of  the  residuary  estate.^^^*^     If  there  is  no  prop- 
erty out  of  which  to  compensate  the  disappointed  beneficiaries, 
they  are,  at  all  events,  entitled  to  take  the  property  devised 
subject  to  dower  rights  thus  asserted.^^^ 

On  the  other  hand,  the  election  of  the  widow  to  take  under  the 
law  can  not  increase  the  estate  given  to  others  by  the  will.^J^^ 
Thus  where  a  devise  of  one-half  was  given  to  the  widow  for  life, 
the  residue  to  be  equally  divided  between  the  heirs  and  a  speci- 
fied church,  it  was  held  that  upon  the  widow's  election  to  take 
under  the  law,  the  church  could,  in  no  case,  get  more  than  one- 
fourth  of  the  estate  given  by  the  will.^^^  And  where  testator  dis* 
posed  of  his  entire  estate,  giving  his  wife  certain  property  for 
life  in  lieu  of  dower,  remainder  to  others,  and  she  elected  to 
take  her  dower,  it  was  held  that  the  remainder  men  whose 
interests  were  affected  by  such  election  could  not  be  compen- 

xs.Muivhead  v.  Muirhead.  L.   R.  Pa.  St.  307 ;   Sherman  v.  Baker^  20 

15  ^pp   Cas   289.     (In  Hub  case  the  R.  T-  613;    20  R.  I.    (Part  3 )    440 , 

hat  of     nv  beneficiavy   dyin,  be-  Latta  v.  Brown    96  Tenn.  343. 
fore   the  widow  was   to  lapse.     On  -« Trea.sy   v.   Treasy    -   Ky    --- 

tore   tne  Avmuw    w  ,      j:„  M^qO^  •    36   S.  W.   3;    Chamberlain 

this   ground   this   case   can   be   dis-  (18.)b).    '^'^'J'-    "'        ' 

.  -r,      J   11    ,r     T?n.i  V    Berrv    (Kv.)      (1900),   ob   b.    w. 

tini^uished    from    Randall    v.    Ran-  v.   iserry    yiy-i      v 

dall     8,5   Md.   430:    37   Atl.   209,   in  659. 

tM^L  *„e  o,  any  .e.«.a^  Z^^^^^^  ^-   -^ 

dying    before    the    widow,    was    to  ^     ^'^^^  \          ,    L'^    C,    ono- 

pass    to   the   heirs   of   such  benefi-  Gallagher's  Appeal,  87  Pa.  St.     00 

\         .  Sherman   v.   Baker,    20   R.    i.    61.5, 

"iirEverett    v.    Croskrey,   92    la.  20    R.    I.    (Part    3)    446:     McRey- 

333:  Jennings  V.Jennings.  210.  S.  nolds    v.    Counts,    9    Gratt.     (Va.) 

56:     Maskell    v.     Goodall,     2     Dis  242^                                                     ^^^ 

(Ohio)    282;   Batione's  Appeal,   136  i39  Lilly  v.  ivienKe, 


876  .  LAW    OF    WJLLS. 

sated  out  of  funds  from  which  certain  legacies  were  to  be  paid 
at  once;  but  that  they  must  wait  till  the  death  of  the  widow 
and  receive  compensation  out  of  the  property  in  which  she  had 
a  dower  interest.^ ^"^  So  one  to  whom  an  annuity  is  given,  to  be 
paid  by  a  legatee  of  specific  property,  may,  if  the  legatee  re- 
fuses to  pay,  have  satisfaction  out  of  the  property  specifically 
bequeathed.^  ^^  Where  the  widow  refuses  to  take  under  the 
^vill,  her  rights  are  not  in  any  way  affected  by  it;  hence,  where 
the  will  provides  for  a  conversion  of  realty  into  personalty, 
and  the  widow  refuses  to  take  under  the  will,  she  takes  her 
dower  in  realty  as  realty,  and  not  as  personalty.^ ^^ 

140  Sherman    v.    Baker,    20  R.    I.       St.  621.      (Hence  if  the  property  is 
613;  20  R.  I.   (Part  3),  446.  in   fact  sold  the  widow  has  only  a 

141  Hurd    V.     Shelton,     64  Conn.       life  estate  in  one-third  of  the  pro- 
496.  ceeds  of  such  sale.) 

1*2  Cunningham's  Estate,  137  Pa. 


LAW    OS"    WILLS.  °' ' 


CHAPTER  XXXIV. 

LAPSED  AND  VOID  LEGACIES  AND  DEVISES. 


§738.     lapsed  legacies  and  devises  in  general. 

A  lapsed  legacy  or  devise  is  one  which  was  originally  valid, 
so  that  if  testator  had  died  immediately  ni)on  the  execution  of 
his  will  such  devise  or  legacy  would  have  taken  effect,  but 
which  fails  because  the  beneficiary  in  some  way  becomes  in- 
capable of  taking  under  the  will  before  the  devise  or  legacy 
vests.^^^  A  legacy  or  devise  is  also  said  to  lapse  where  the 
beneficiary,  though  competent  to  take  under  the  will,  refuses 
to  do  so.^''^  :N"aturally  this  rarely  happens  except  in  cases  where 
beneficiary  would  be  deprived  by  the  operation  of  the  will  of 
certain  legal  rights,  and  elects  to  stand  upon  those  rights  and 
not  to  take  under  the  will. 

§739.     Lapse  at  common  law  by  death  of  beneficiary. 

A  lapse  most  frequently  occurs  by  reason  of  the  death  of 
beneficiary  before  that  of  testator.  At  common  law  it  was  well 
settled  that  in  such  a  case  as  this,  the  devise  or  legacy 
lapsed.^ ^^     Lapse  might  occur  by  reason  of  the  death  of  the 

i43Hibler    v.    Hibler,    104    Mich.  Sawyer  v.  Freeman,  161  Mass.  543. 

274;   Murphy  v.  McKeon,  53  N.  J.  "^ /n  re  Atkinson    (1892),  3  Ch. 

Eq.   406;    Shadden   v.   Hembree,    17  52;   In  re  Rees,   L.  R.  44   Ch.  Div. 

Ore.  14;  Wain's  Estate,  189  Pa.  St.  484;  Morse  v.  Hayden,  82  Me.  227; 

ggj  Wood    V.    Seaver,    158    Mass.    411; 

144  Hall  V.  Smith.  61  N.  H.  144;  Bryson  v.  Holbrook,  159  Mass.  280; 


878 


LAW    OF    WILLS. 


beneficiary  after  testator,  but  before  the  gift  vested.^ **^  Where 
a  legacy  or  devise  vests  upon  testator's  death  it  does  not  lapse 
because  the  beneficiary  dies  before  the  devise  or  legacy  vests 
in  possession.^ '*'^  A  devise  in  trust  or  in  the  nature  of  a  trust 
did  not  of  course  lapse  by  reason  of  the  death  of  the  trustee 
before  the  beneficiary.^^*  Thus  a  gift  to  a  designated  priest, 
to  be  expended  in  masses  for  the  rej)ose  of  the  soul  of  testa- 
trix, was  held  not  to  lapse  by  reason  of  the  death  of  the  priest 
before  that  of  testatrix,  since  another  trustee  might  be  ap- 
pointed.^^^  Where  a  legacy  was  given  upon  a  valuable  con- 
sideration in  payment  of  a  debt  of  testator's,  it  did  not  lapse 
at  common  law.^^^ 

§740.     Lapse  at  common  law  by  dissolution  of  corporation. 

So  a  legacy  to  a  private  corporation  will  lapse  by  the  dis- 
solution of  such  corporation  and  the  transfer  of  its  property 
to  other  corporations  of  different  scope  of  activity  before  the 
death  of  testator.^^^  However,  a  devise  to  public  corporations 
does  not  lapse  because  of  the  consolidation  of  such  corpora- 
tions,^ ^^  nor  does  a  devise  to  one  such  corporation  lapse  be- 
cause of  its  subdivision  into  several.^  ^^ 

§741.     Lapse  prevented  at  common  law  by  testator's  intention. 

This  rule,  however,  was  only  a  prima  facie  one,  designed 
to  carry  out  the  intention  that  testator  probably  would  have 


Hall  V.  Smith,  61  N.  H.  144;  Mur 
phy  V.  McKeon.  53  N.  J.  Eq.  406 
Gordon  v.  Jackson  (N.  J.),  43  Atl 
98 ;  Shadden  v.  Hembree,  17  Ore 
14;  Wain's  Estate,  189  Pa.  St.  631 

146  Powers  V.  EgelhoflF,  56  111 
App.  606 ;  Wilson  v.  Hall,  6  Ohio  C 
C.   570. 

147  Hibler  v.  Hibler,  104  Mich 
274;  In  re  Gardner,  140  N.  Y.  122 
Goebel  v.  Wolfe,  113  N.  Y.  405:  El 
liott's  Estate,  58  N.  Y.  Siipp.  603 
distinguishing  Vincent  v.  New 
house,   83   N.   Y.   505;    Shipraan   v 


Rollins,   98   N.   Y.   311;    Delaney  v. 
McCormack,   88   N.   Y.    174. 

148  See   Sec.   610. 

149  Kerrigan  v.  Tabb  ( N.  J. ) , 
39  Atl.  701. 

mo  Ward  V.  Bush  (N.J.)  (1900i, 
45  Atl.  534. 

151  Merrill  v.  Hayden,  80  Mo. 
133. 

1"  Sheldon  v.  Stockbridge,  67  Vt. 
299. 

if>3  Board  of  Education  v.  Ladd, 
26  O.  St.  210. 


LAW    OF    WILLS.  °''^ 


had  if  such  a  contingency  had  occurred  to  him  as  that  of  the 
death  of  the  beneficiary  befoi^e  his  own.  Accordingly,  if  tes- 
tator clearly  showed  his  intention  that  the  legacy  should  not 
lapse  in  case  beneficiary  died  before  testator,  but  should  pass 
to  the  heirs  or  next  of  kin  of  such  beneficiary,  such  intention 
will  be  given  full  force  and  effect.^^^  Thus,  where  testator 
clearly  intends  that  his  gifts  shall  pass  to  the  beneficiaries  as 
a  class,  there  is  no  lapse  by  reason  of  the  death  of  any  one  of 
them  before  the  class  is  determined;  that  is,  the  entire  gift 
passes  to  the  members  of  the  class  in  existence  when  the  class 
is  to  be  determined.1^5  ^or  ig  there  a  lapse  where  testator 
specifically  provides  for  the  gift  over  in  case  of  the  death  of 
the  first  benefieiary.i^^  go  where,  after  the  death  of  certain 
beneficiaries,  testator  added  to  their  names  the  words  "de- 
ceased," and  interlined  "or  to  their  legal  heirs,"  and  re-exe- 
cuted the  Avill,  it  was  held  that  this  prevented  lapse.^^^ 

A  provision  in  a  codicil  that  "in  the  final  division  of  my 
estate  I  desire  that  the  grandchildren  shall  be  taken  into  con- 
sideration, and  that  the  estate  shall  be  so  divided  that  the 
grandchildren  shall  have  equal  shares,"  is  not  a  gift  to  the 
grandchildren  whose  parents  are  living,  but  a  provision  to 
prevent  lapse.^^^  The  common  law  favored  such  reasonable 
construction  of  the  will  as  would  prevent  lapse.^^^ 

§742.     Effect  of  modern  statutes  upon  the  common  law  doctrine 
of  lapse. 

In  many  jurisdictions  statutes  have  been  passed  which  mod- 
ify the  common  law  doctrine  of  lapse  of  a  devise  or  legacy  in 
case  of  the  death  of  the  beneficiary  before  the  devise  or  legacy 

154  7n  re  Pinhorne    (1894),  2  Ch.  iss  Rivers    v.    Rivers,     36    S.    C. 

276-    Kerrigan   v.   Tabb    (N.J.),39  302;    Brice  v.  Horner,  —  Tenn.  — 

Atl.  701;  Gilmore's  Estate,  154  Pa.  (189G),   38   S.  W.   440. 

St.  523;  McGovran's  Estate,  190  Pa.  i"  Gihnore's   Estate,   154  Pa.   St. 

St.    375;    Rivers    v.    Rivers,    36    S.  523. 

C    302-    Brice  v.  Horner,  —  Tenn.  iss  McDowell's        Estate        (Pa.) 

_  (1806),  38  S.  W.  440.  (1900),  45  Atl.  419. 

155  Gordon    v.    Jackson     (N.    -J.)  ^'^^  In  re  Smith,  L.  R.  35.  Ch.  D. 

43  Atl.  98;  McGovran's  Estate,  190  558=   Vanderzee  v.  Slingerland,   103 

Pa.  St.   375.  ^'-  Y.  47. 


880  LAW     OF     WILLS. 

vests.  These  statutes  are  by  no  means  uniform,  and  for  the 
purpose  of  convenience  may  be  divided  into  three  groups. 

In  jurisdictions  of  the  first  group  lapse  is  prevented  only 
where  the  beneficiary  is  a  lineal  descendant  of  the  testator. 
In  jurisdictions  of  this  class,  if  the  legatee  or  devisee  is  a 
descendant  of  testator,  and  dies  before  interest  vests,  leaving 
issue  which  survive  at  the  death  of  testator,  the  devise  or 
legacy  does  not  lapse  in  the  common  law  sense  of  the  term, 
but  passes  to  such  issue.^*^^ 

In  jurisdictions  of  the  second  Qlass  the  statute  prevents  lapse 
where  the  beneficiary  is  a  child  or  other  relative  of  testator, 
and  dies  leaving  issue  surviving  testator.^  *^^  The  South  Caro- 
lina statutes  on  the  subject  of  lapse  apply  only  where  the  bene- 
ficiary is  a  ''child"  of  testator;  and  have  no  application  where 
the  beneficiary  is  a  grandchild  or  greatgrandchild.^*^-  In  some 
states  of  this  group  the  statute  applies  only  to  certain  classes  of 
relatives  who  are  clearly  named  in  the  statute.^  ^^ 

Statutes  of  the  first  and  second  groups  leave  the  common 
law  of  lapse  unmodified,  except  in  cases  where  the  devisee  or 
legatee  stands  in  one  of  the  designated  classes  of  relationship 
to  testator.  In  states  of  the  third  group,  however,  the  statute 
provides  that  devises  or  legacies  should  not  lapse  where  the 
devisee  or  legatee  dies  before  testator,  if  such  devisee  or  lega- 
tee leaves  children  or  lineal  descendants  alive  at  testator's 
death.^*'^  This  statute;  however,  modifies  the  common  law 
only  where  beneficiary  left  is?je  surviving  testator.  Accord- 
iiigly,  where  the  beneficiary  dies  without  leaving  issue  sur- 
viving, the  statute  has  no  application,  and  the  common  law 
rule  of  lapse  applies.^  ^'^ 

In  some  states  the  statutes  on  the  subject  of  lapse  are  so 
broad  that  they  prevent  lapse  in  any  case,  no  matter  what  re- 


160  Morse  v.  Hayden,  82  Me.  227.  i64  Williams  v.   Knight,   18   R.   I. 

161  Woolley   V.    Paxson,   46    0.    S.  333 ;    Wildberger   v.   Cheek,   94   Va. 
307.  517. 

162  Logan  V.  Brunson,  56  S.  Car.  les  Stetson    v.    Eastman,    84    Me. 
7.  366;    Smith    v.    Smith,    141    N.    V. 

163  See  Sec.  743.  29. 


LAW     OF     WILLS.  881 

lation  the  beneficiary  is  to  the  testator,  and  entirely  irrespec- 
tive of  whether  beneficiary  1-eaves  sur\dving  descendants  or 
not.^^^  These  statutes  do  not  ordinarily,  in  their  terms,  ap- 
ply where  the  beneficiary^  died  before  the  will  was  exe- 
cuted.^ ^^  jSTor  do  they  apply  where  the  interest  has  vested  in 
the  beneficiary  upon  testator's  death,  and  he  dies  before  talc- 
ing possession  of  the  property  devised.^  ^^ 

§743.     "Relations"  or  "descendants"  under  the  statute. 

Where  the  statute  against  lapse  applies  only  where*  the 
beneficiary  is  a  "relation"  of  testator,  a  relation  by  marriage 
is  not  a  relation  within  the  meaning  of  the  statute  ;^^^  nor  is 
a  wife  a  "relative"  of  her  husband  in  this  sense  ;^'^°  nor  is  a 
husband  a  "relative"  of  his  wife.-"^^  Where  the  statute  pre- 
vents lapse,  and  in  case  beneficiary  leaves  a  "lineal  descendant," 
it  is  held  that  a  mother  of  beneficiary  is  not  a  "lineal  de- 
scendant" ;^''^^  nor  indeed  are  any  of  the  heirs  not  in  the  de- 
scending line  from  the  beneficiary  •,^'^^  nor  is  an  adopted 
child  a  descendant  so  as  to  pre-vent  lapse.^''^^  Under  statutes 
preventing  lapse,  the  beneficiary  who  died  before  testator  can 
not,  by  his  will,  alter  the  devolution  of  the  gift  from  that  in- 
dicated by  statute.-' '^^ 

166  Garrison  v.  Hill,  81  Md.  206;  i69  Horton  r.  Earle,  162  Mass. 
Halsey  v.  Convention  of  the  Prot-  448;  (a  brother-in-law  held  not  to 
estant  Episcopal  Church,  75  Md.  be  a  relation  in  this  sense).  Bram- 
275;     Wallace   v:   Du   Bois,   65   Md.  ell  v.  Adams,   146  Mo.  70. 

153;  Glenn  v.  Belt,  7  G.  &  J.  (Md.)  ito  Renton's     Estate,     10     Wash. 

3G2.  533. 

167  Williams  v.  Knight,  18  R.  I.  i^i  Norwood  v.  Mills,  1  O.  N.  S. 
333.   It  is  held  to  apply  where  the  314. 

beneficiary  died  before  the  will  was  ^'^~  Morse  v.  Hayden,  82  Me.  227. 

executed.    Wildberger   v.   Cheek,   94  1^3  Loveren  v.  Donaldson  (N.  H. ), 

Va.  517;  Nutter  v.  Vickery,  64  Me.  45  Atl.  715. 

490;  Taylor  v.  Conner,  7  Ind.  115;  it*  Phillips  v.  McConica,  59  O.  S. 

Minter's    Appeal,    40    Pa.    St.    Ill;  1. 

Darden  v.  Harrill,  10  Lea,  421.  i^s  Halsey  v.  Convention  of  P.  K. 

168  Patton  V.  Ludington,  103  Wis.  Church,  75  Md.  275. 
629. 


882  LAW    OF    WILLS. 

§744,     Disposition  of  lapsed  legacies  and  devises. 

If  testator  has  expressed  his  intention  in  his  will  as  to  dis- 
position of  lapsed  legacies  and  devises,  such  disposition  will, 
if  legal,  be  given  full  effect.^  ^^  Where  testator  has  expressed 
his  intention,  however,  the  legacy  or  devise  is  not  always 
spoken  of  as  lapsed.     It  is  rather  a  case  of  a  substitutional 

gift. 

Where  testator  does  not  express  his  intention  as  to  the 
disposition  of  his  devise  or  legacy,  and  there  is  no  general  re- 
siduary clause  in  the  will,  the  legacies  or  devises  pass  as  in- 
testate property.^ '^'^  The  persons  taking  are  those  who  were 
designated  by  the  statutes  of  distribution  to  take  at  testator's 
death  if  he  had  died  intestate,  even  though  the  lapsed  gift  was 
not  to  be  paid  till  the  termination  of  two  lives  in  being  at  tes- 
tator's death.^'^^  If  there  is  a  general  residuary  clause  in  the 
will,  a  lapsed  legacy  given  by  any  part  of  the  will  other  than 
such  residuary  clause  becomes  a  part  of  residuum  upon  the 
lapse,  and  passes  to  the  residuary  legatee.^ '''^  If,  however, 
the  lapsed  legacy  is  given  by  a  residuary  clause,  it  does  not  be- 
come part  of  the  residuum  upon  such  lapse.  Of  course,  if 
there  is  only  one  residuary  legatee,  the  proposition  that  if  the 
legacy  to  him  lapses  it  must  go  to  the  next  of  kin  as  intestate 
property  is  so  clear  as  to  need  no  discussion.  But  where  the 
residuum  of  estate  is  given  to  two  or  more,  and  the  gift  to  one 
of  them  lapses,  it  has  often  been  questioned  whether  such  lapse 
should  pass  under  the  residuary  clause  to  the  remaining  resid- 
uary legatees,  or  whether  it  should  be  regarded  as  intestate 
property.  It  is  now  well  settled  that  a  lapsed  share  of  the  re- 
siduum is  not  a  part  of  the  residuum,  but  is  intestate  prop- 

176  Leake  v.  Watson.  60  Conn.  i"s  Clark  v.  Cammann,  160  N.  Y. 
498:     McGreevy    v.    McGrath,    152       315. 

Mass.   24;    Smith  v.   Secor,   157   N.  it9  Crerar    v.    \Yilliams,    44    111. 

Y.    402;     Hoopes'    Estate,    185    Pa.  App.  497,  affirmed  145  111.  625;   21 

St.   172.  L.  R.  A.  454;  New  Orleans  v.  Har- 

177  Collins  V.  Collins,  126  Ind.  die.  43  La.  Ann.  251 ;  Dulaney  v. 
559 ;  Hunter's  Succession,  45  La.  Middleton,  72  Md.  67 ;  Pollock  v. 
App.  262;  Clark  v.  Cammann,  160  Farnham,  156  Mass.  388;  Roy  v. 
N.  Y.  315.  Monroe,  47  N.  J.  Eq.  356. 


LAW     OF     WILLS.  883 

gj.|.y]8o  gQ  where  gifts  were  made  to  A  and  B  separately, 
and  the  residuary  estate  was  given  to  them,  and  A  died  with- 
out descendants  before  the  testator,  it  was  held  that  the  spe- 
cific legacy  to  A  became  a  part  of  the  residiunn ;  and  that  the 
residuum,  as  increased  by  this  lapsed  legacy,  was  to  be  divided 
equally  between  B  and  those  who  would  take  if  testator 
had  died  intestate.^  ^^ 

As  in  a  case  of  lapse  because  of  the  death  of  the  beneficiary, 
legacies  which  fail  because  of  the  refusal  of  the  beneficiary 
to  take  pass  to  the  residuary  legatee  if  no  provision  in  the  will 
is  fund  providing  for  such  contingency.^  ^^  Thus,  a  testa- 
tor gave  legacies  to  three  charitable  corporations,  but  pro- 
vided that  if  these  corporations  ever  "in  any  manner  gave 
any  support  and  sympathy  or  countenance  to  what  I  consider 
the  pernicious  fallacy  of  prohibition  or  its  bantling  local  op- 
tion," the  legacies  should  be  forfeited,  and  the  amounts  given 
should  pass  to  a  public  library.  The  trustees  of  these  chari- 
table corporations  refused  to  adopt  the  legacies  because  of  their 
affiliation  with  their  religious  body,  whose  princi2de.s  were  op- 
posed to  traffic  in  intoxicating  liquors.  It  was  held  that,  upon 
these  facts,  the  legacies  passed  to  the  public  library.^^^ 

At  common  law  it  seemed  well  settled  that  a  lapsed  devise 
of  real  estate  descended  to  the  heir  as  intestate  property.-^ ^^ 
In  deciding  thus,  the  courts  practically  held  that  every  devise 
of  real  estate,  even  though  residuary  in  form,  was  in  legal 
effect  a  specific  devise,  and  could  pass  only  such  property  as 
corresponded  to  that  description  at  the  time  the  will  was  made. 

The  reason  given  for  the  distinction  between  the  devolu- 
tion of  lapsed  legacies  and  lapsed  devises  is  hardly  a  satisfac- 


180  Buffinton  v.  Maxam,  152  sary  to  compensate  those  who  are 
Mass.  477 ;  Gray's  Estate,  147  Pa.  disappointed  by  the  refusal  of  the 
St.  67;  Gorgas's  Estate,  166  Pa.  widow  to  take  under  the  will.) 
St.  269;  Kimball's  Will,  20  R.  I.  iss  White's  Estate,  174  Pa.  St. 
619;    20  R.  I.    (Part  3)    688.  642. 

181  Stetson  V.  Eastman,  84  Me.  is*  Thomas  v.  Thomas,  108  Ind. 
366.  576;    Prescott    v.    Prescott,    7    Met. 

182  Sawyer  V.  Freeman,  161  Mass.  (Mass.)  141;  Williams  v.  NeflT. 
543.  (This  rule,  of  course,  applies  52  Pa.  St.  326;  Stonestreet  v. 
only  where  such  legacy  is  not  neces-  Doyle,   75   Va.    356. 


884  LAW     Ol-^    WILLS. 

torv  one.  The  courts  placed  the  distinction  upon  the  ground 
that  a  residuary  chiuse  of  personalty  could  pass  all  the  per- 
sonalty owned  by  testator  at  his  death,  while  a  residuary 
clause  of  realty  could  pass  only  such  realty  that  testator  owned 
at  the  time  of  the  execution  of  the  will.^^^ 

In  most  states,  as  we  have  seen  already,  statutes  have  been 
passed  making  it  possible  for  testator  to  devise  after-ac- 
quired real  estate.  Where  statutes  of  this  sort  have  been 
passed  they  destroy  the  common  law  reason  for  holding  that 
a  lapsed  devise  descends  to  the  heir,  and  does  not  pass  to  the 
residuary  devisee.  Accordingly,  in  most  states  it  is  held  that 
where  such  statutes  are  in  force  a  lapsed  devise  passes  to  the 
residuary  devisee,  and  not  to  the  heir.^^^ 

§745.     "Void  legacies  and  devises  in  general. 

A  void  legacy  or  devise  is  one  which  never  could  have  taken 
effect  upon  testator's  death.^^^  Void  legacies  may,  for  pur- 
poses of  convenience,  be  divided  into  two  general  classes: 
those  which  are  void  by  reason  of  some  condition  in  testator's 
will  which  is  not  complied  with,  and  those  which  are  void  by 
reason  of  the  existence  of  some  positive  rule  of  law  which  pre- 
vents testator  from  making  the  disposition  of  his  property 
which  he  contemplates. 

185  "At   common   law  whenever   a  tator  at  the  time  of  his  death  not 

devise    lapsed    by    the    death    of     a  otherwise  given,  no  matter  when  ac- 

devisee   before    the    death    of    testa-  quired."    Molineaux  v.  Raynolds,  55 

tor,     the    property    passed    to    the  N.  J.  Eq.   187. 

heirs-at-law,   while   lapsed   legacies,  iss  Drew    v.    Wakefield,    54    Me. 

instead   of   passing   to  the   next  of  291;     Lovering     v.     Levering,     129 

kin,    fell    in    the    residuum   and    so  Mass.     97 ;     Shreve     v.     Shreve,     2 

passed   under   a   will   to   the  resid-  Stock,  385    (N.  J.).    (This  question 

uary  legatees.     This  distinction  be-  was  raised  in  this  case  but  not  de- 

tween   the   course  taken   under   the  cided.)      Smith  v.  Curtis,  5  Dutch, 

same'  condition  of  affairs  by  lapsed  345;   Molineaux  v.  Raynolds,  55  N. 

devises    and   lapsed    legacies,    seems  J.    Eq.    187;    Cruikshank   v.    Home, 

to  have  sprung  from  the  fact  that  etc.,  113  N.  Y.   337. 
no  real  estate  acquired  by  the  testa-  is^  Potter    v.    Couch,    141    U.    S. 

tor  after  the  execution  of  his  will,  296;    Ketchum   v.    Corse,    65    Conn, 

passed  under  the  residuary  clause,  85;     State    v.    Holmes,    115    Mich 

while    such    a    clause    included    all  456. 
personal    property    owned    by    tes- 


LAW     or     WILLS. 


885 


Legacies  which  are  void  by  reason  of  some  condition  in  tes- 
tator's will  which  is  not  complied  with  have  already  been  dis- 
cussed under  the  heading  of  Conditions.^ ^^  Legacies  which 
are  void  by  reason  of  the  existence  of  some  positive  rule  of 
law  may  be  illustrated  by  gifts  of  remainders  over  on  breach 
of  a  condition  in  restraint  of  alienation,^ ^'^  or  by  gifts  which 
are  void  as  being  in  contravention  of  the  rule  against  per- 
petuities.^''^ So  a  gift  may  be  void,  because  the  description 
of  the  property  given  is  so  ambiguous  that  it  is  impossible  to 
tell  to  which  part  of  testator's  estate  it  applies.^^^  A  gift  may 
also  be  void  because  the  legatee  never  had  the  capacity  to  take 
the  ffift.^^2 


to^ 


§746.     Devolution  of  void  legacies  and  devises. 

The  rules  which  govern  the  devolution  of  void  legacies  are 
substantially  the  same  as  those  which  control  in  case  of  lapsed 
legacies.  In  the  absence  of  a  residuary  clause  the  property 
which  is  the  subject  of  a  void  gift  descends  as  in  case  of  in- 
testacy.^''^ Where  there  is  a  valid  general  residuary  clause 
void  legacies  pass  under  such  residuary  clause  to  the  residu- 
ary legatees.^'''*  While  at  common  law  void  devises  descended 
to  the  heir,  they  pass  now  under  a  residuary  clause  which  con- 
tains apt  words  to  pass  such  property.^ ''^  But  where  the  re- 
siduary clause  passes  only  the  property  "not  hereinbefore  dis- 

188  See  Chapt.  XXXI.  Harris  v.  i93  Levy  v.  Levy,  33  N.  Y.  97 ; 
Harris  (Ky.),  L.  R.  1313,  rehearing  State  v.  Holmes,  115  Mich.  456; 
refused,  50  S.  W.  533;  20  Ky.  L.  R.  McHugh  v.  McCole,  97  Wis.  166; 
1911;    Wilson   v.   Hall,   6   O.   C.   C.  40  L.  R.  A.  724. 

570;     Starke    v.    Cond6,    100    Wis.  19*  Dulany  v.   Middleton,   72   Md. 

g33_  67  ;    Carter  v.   Presbyterian  Church 

189  Potter  v.  Couch,  141  U.  S.  Board  of  Education,  144  N.  Y. 
296.  621;    In   re   Allen,    151    N.   Y.   243; 

190  Perkins  v.  Fisher,  59  Fed.  Davis  v.  Hatchings,  15  Ohio  C.  0. 
801;  Ketchum  v.  Corse,  65  Conn.  174  ;  8  Ohio  C.  D.  52 ;  rev.  4  Ohio  N. 
85;     State    v.    Holmes,     115    Mich.        P.  276 ;   6  Ohio  Dec.  371. 

456;    Kelly    v.    Nichols,    17    R.    I.  i95  Giddings  v.  Giddings,  65  Conn. 

306.  149;    Davis   v.    Hutchings,    15   Ohio 

loiAsten  v.  Asten    (1894),   3  Ch.  C.  C.  174;  8  Ohio  C.  D.  52;  revers- 

2G0.  ing  4  Ohio  N.  P.  276;   6  Ohio  Dec. 

192  House   of   Mercy  v.   Davidson,  371;    Milwaukee    Protestant    Home 

90  Tex.   529:    39  S.  W.  924.  v.    Becher,   87    Wis.   409. 


886  LAW     OF     WILLS. 

posed  of,"  it  does  not  pass  land  devised,  though  the  devise  is 
void  as  in  violation  of  the  rule  against  perpetuities.^  ^^ 

The  well  recognized  exception  to  the  rule  that  void  legacies 
and  devises  pass  under  a  residuary  clause  is  where  the  void 
legacy  or  devise  is  itself  given  by  a  residuary  clause.  In  such 
case  the  property  w^hich  is  the  subject  of  the  void  gift  does 
not  pass  to  the  other  residuary  legatee,  but  descends  as  intes- 
tate property.^  ^^  Of  course,  if  there  is  a  specific  gift  over  of 
the  property  which  -was  the  subject  of  the  void  gift,  in  case  of 
the  failure  of  such  gift,  effect  will  be  given  to  this  specific  pro- 
vision, and  the  property  given  will  pass  neither  under  the  re- 
siduary clause  nor  as  intestate  property.^  ^^ 

196  Kelly  V.  Nichols,  17  R.  I.  las  Hamlin  v.  Mansfield,  88  Me. 
306;  19  L.  R.  A.  413.                                 131;    White's   Estate,    174    Pa.    St. 

197  Powers  V.  Codwise,  172  Mass.       042. 
425;     Temple  v.   Pasquotank   Coun- 
ty, 111  N.  C.  36;  Booth  v.  Baptist 
Church,  126  N.  Y.  215. 


RS7 
LAW    OF     WILLS.  ^' 


CHAPTER   XXXV. 

CHARGES  OF   DEBTS  AND   LEGACIES  UPON   SPECIFIC 

PROPERTY. 

S747.     General  rule.— Legacies  payable  out  of  personalty. 

At  common  law,  and  independent  of  any  statute,  "the  per- 
sonal estate  is  the  primary  fund  for  the  payment  of  legacies, 
unless,  from  the  will,  it  clearly  appears  that  testator's  inten- 
tion was  otherwise."^  In  the  absence,  therefore,  of  anything 
in  the  will  to  indicate  testator's  intention  that  a  legacy  shall 
be  charoed  upon  the  estate,  or  paid  out  of  the  proceeds  thereof, 
the  personalty  is  the  fund  devoted  to  the  payment  of  legacies; 
and,  in  case  of  a  deficiency  in  the  personalty,  the  legacy  abates 
in  whole  or  in  part.^ 

§748.      Charging  legacies  upon  realty — in  general. 

This  rule,  however,  did  not  prevent  testator  from  charging 
legacies  upon  realty,  but  applied  only  in  the  absence  of  such 
intention.  When  testator's  intention  was  clear,  legacies  could 
be  charged  upon  realty  either  by  express  words  or  by  clear  im- 

1  McQueen  v  Lilly,  131  Mo.  9;  affirming  61  111.  App.  539 ;  McQueen 
Duncan  v.  Wallace/lU  Ind.  169;  v.  Lilly,  131  Mo.  9;  Bevan  v. 
Davidson  v.  Coon,  125  Ind.  497;  Cooper,  72  N.  Y.  317 ;  Hogan  v. 
Geiger    v.    Worth,    17    O.    S.    564.  Kavanaugh,  138  N.   1.417;    Lee  v. 

2  Wetitworth  V.  Read,  166  111.  139.  Leo,  88  Va.  805. 


888  LAW    OF    WILLS. 

plication.^  It  need  hardly  be  observed  that  testator  could  not, 
by  anj  wording-  of  his  will,  give  legacies  a  pi*iority  of  pay- 
ment over  his  debts.^ 

§749.     Words  which  charge  legacies  upon  realty. 

When,  upon  consideration  of  the  whole  will,  it  is  evident 
that  testator's  intention  in  charging  a  legacy  upon  some  or  all 
of  his  realty,  the  courts  will  enforce  such  an  intention.  Some 
very  close  questions  of  construction  are  presented,  however, 
in  determining  when  this  intention  exists,  since  the  litigated 
cases  generally  arise  where  testator  has  disposed  by  will  of 
more  property  than  he  possesses.  A  gift  of  testator's  estate, 
"after"  a  certain  legacy  is  to  be  paid,  charges  such  legacy 
upon  the  realty  thus  disposed  of.^  A  charge  may  be  created 
by  a  specific  direction  to  take  a  certain  sum  "out"  of  the  prop- 
erty devised  to  a  named  beneficiary.^  A  legacy  may  be 
charged  upon  realty  by  a  will  which  refers  to  a  certain  deed, 
where  testator's  intention  to  charge  the  legacy  is  apparent 
from  the  two  instruments.'^  A  provision  that  certain  prop- 
erty, part  of  which  is  realty,  is  "to  be  used  for  the  payment  of 
my  debts,"  clearly  charges  the  debts  upon  such  realty.^ 

§750.     Implied  charge  of  legacies  upon  realty. 

Legacies  may  be  charged  upon  realty  without  the  use  of  ex- 
press words  where  testator's  intention  so  to  do  is  clear  from  the 
will  as  a  whole.  A  charge  of  a  legacy  upon  real  property  may 
be  implied  from  a  direction  to  pay  the  legacy    without  sacri- 

3  Dickerman  V.  Eddinger,  1G8  Pa.  6  Robert's  Estate,  163  Pa.  St. 
St.  240;  Webster  v.  Wiggin,  19  R.  408;  Albright  v.  Albright,  128  Pa. 
I.  73;   34  Atl.  990.     See  cases  cited       St.  .381. 

in  following  sections.  ^  Mortgage     Trust     Company     v. 

4  Webster  v.  Wiggin,  19  R.  I.  Moore,  150  Ind.  465.  (The  fact  that 
73;   34  Atl.  990.  the   deed   was   never    delivered   does 

5  Atmore  v.  Walker  (Del.),  46  not  prevent  the  charging  of  the 
Fed.  429  ;   Cunningham  v.  Cunning-  legacy. ) 

ham,    72    Conn.    253;    Davidson    v.  « Watts  v.   Watts,   38   0.   S.   480. 

Coon,  125  Ind.  497  ;  9  L.  R.  A.  584  ; 
McQueen  v.  Lilly,  131  Mo.  9;  Smith 
V.    Cairns,   92   Tex.    G67. 


LAW     OF     WILLS. 


889 


ficing  the  real  estate  if  possible.^  A  charge  of  a  legacy  upon 
real  property  is  created  by  a  poAver  of  sale  for  the  purpose  of 
paying  such  legacy/"  and  a  direction  to  the  executors  to  pay 
an  annuity  during  the  life  of  the  beneficiary  impliedly 
charges  such  annuity  upon  testator's  entire  estate.-^ ^ 

Where  testator,  by  will,  gives  legacies  in  excess  of  the 
amount  of  his  personal  property,  which  fact  is  at  the  time 
known  to  him,  and  his  will  clearly  manifests  an  intention  th«.t 
such  legacies  shall  be  paid  in  full,  it  is  held  to  manifest  an  in- 
tention to  charge  the  legacies  upon  the  realty.-^  ^  The  i|;iiere 
fact  that  testator's  personalty  will  not  be  sufficient  to  pay  the 
legacies  in  full  is  said,  however,  in  some  cases,  not  of  itself 
to  show  an  intention  to  charge  the  legacies  upon  the  realty.^ "^ 
This  is  especially  true  where  legacies  are  charged  specifically 
upon  personalty  ;^^  or  where,  at  the  execution  of  the  will,  tes- 
tator does  not  know  of  the  deficiency  of  personalty.-^ ^ 

An  intention  not  to  charge  the  legacy  upon  the  specific 
realty  is  also  evident  where  the  specific  realty  is  excepted  from 
the  general  power  of  sale  to  raise  money  for  the  legacy,^  ^  or 


9  Price  V.  Price,  52  N.  J.  Eq 
326. 

10  Clark  v.  Marlow,  149  Ind.  41 
Stevens  v.  Flower,  46  N.  J.  Eq.  340 
Dean  v.  Lowenstein,  6  0.  C.  C.  587 
Blake's    Estate,    134    Pa.    St.    240 

n  Hunt  V.  Hayes,  19  Ohio  C.  C 
151  ;   10  Ohio  C.  D.  388. 

12  Cross  V.  Kennington,  9  Beav 
150;  Elliot  V.  Hancock,  2  Vern 
143;  Miller  v.  Cooch,  5  Del.  Ch 
161 ;  O'Brien  v.  Dougherty,  1  App 
D.  C.  148;  Duncan  v.  Wallace,  114 
Ind.  169;  Hoyt  v.  Hoyt,  85  N.  Y 
142;  McCorn  v.  McCorn,  100  N.  Y 
511;  Briggs  v.  Carroll,  117  K  Y 
288.  affirming  50  Hun,  586 ;  Town 
send  V.  To^^^^send,  25  0.  S.  477 
Dean  v.  Lowenstein,  6  Ohio  C.  C 
529:  Pryer  v.  Mark,  129  Pa.  St 
529. 


13  Bishop  V.  Howarth,  59  Conn. 
455;  Colder  v.  Chandler,  87  Me. 
63;  Blouin  v.  Phaneuf,  81  Me. 
176;  Lawton  v.  Fitchburg  Savings 
Bank,  160  Mass.  154;  Turner  v. 
Gibb,  48  N.  J.  Eq.  526. 

i4Hibler  v.  Hibler,  104  Mich. 
274.  (In  this,  ease  other  legacies 
were  specifically  charged  upon 
realty.  The  legacy  in  question  was 
charged  specifically  upon  personalty 
and  was  said  to  be  in  consideration 
of  what  was  justly  due  the  legatee. 
It  was  held  that  this  did  not  charge 
the  legacy  upon  the  realty.)  Smith 
V.  Mason,  89  Va.  713. 

i'5  Bishop  V  Howarth,  59  Conn. 
455. 

16  .lohnson  v.  Home  for  Aged 
Men,  152  Mass.  89. 


890  I^^W     OF     WILLS. 

where  it  appears  from  the  will  that  any  deficiency  of  legacies 
is  to  be  divided  pro  rata  among  the  legatees.^" 


17 


§751.     Direction  for  support  and  maintenance  as  a  charge. 

A  devise  is  often  given  to  one  coupled  with  a  direction  that 
■he  shall  support  and  maintain  another.  The  effect  of  such  a 
provision  is  usually  very  difficult  to  determine.  It  may  im- 
pose a  personal  charge  upon  the  devisee  merely,  it  may  be  a 
charge  upon  the  property  devised,  it  may  be  both  a  personal 
charge  and  a  charge  upon  the  property,  it  may  be  so  worded  as 
to  amount  to  a  trust,  or  it  may  be  a  condition  subsequent.^ ^ 
Where  it  appears  from  the  will  that  testator  merely  recom- 
mends that  the  devisee  named  shall  support  and  care  for  an- 
other, no  charge  is  imposed  upon  the  realty  thus  devised,  nor 
upon  the  devisee  individually.^^  So  where  testator  gave  his 
mother  an  annuity  for  life,  a  direction  that  she  live  with  his 
widow  was  held  not  to  charge  her  support  upon  testator's  es- 
tate.^^Where  the  direction  to  care  for  the  designated  person 
calls  for  personal  care  and  attention,  and  can  not  be  complied 
with  by  simply  paying  him  a  sum  sufficient  to  support  him, 
the  support  and  care  of  the  person  named  is  personal  to  the 
devisee,  and  is  not  a  charge  upon  the  real  estate.-^      Where 

17  Bragaw  v.  Bolles,  51  N.  J.  Eq.  mendation  or  a  request").  Well- 
84.  (In  this  case  the  testator  gave  ons  v.  .Tordan,  83  N.  C.  371;  Tay- 
certain  pecuniary  legacies,  but  died  lor  v.  Lanier,  7  N.  C.  98;  Arnold 
intestate   and   without   heirs    as    to  v.  Arnold,  41   S.  C.  291. 

his  realty.     Although  his  personalty  20  Martin  v.   Goode,    111   N.   Car. 

was  insvifficient  to  pay  the  legacies,  288. 

it  was  held  that  the  legacies  could  21  South    Mahoning    Township    v. 

not  be  charged  upon  the  realty,  as  Marshall,   138  Pa.  St.  570.      (A  de- 

his  intention  was  clearly  otherwise.  vised  a  farm  to   B  whom  he  made 

The  realty,   therefore,   escheated   to  C's    guardian,    C    being    an    imbe- 

the  state.)  cile,  though  strong  and  active.    The 

18  See  Sees.  678,  612.  will  provided  that  C  should  live  on 

19  Perdue  v.  Perdue,  124  N.  C.  the  farm  with  B  "who  should  cafe 
161;  (the  expression  in  this  case  for  him  in  his  actual  wants."  It 
was,  "my  will  and  desire  that  [the  was  held  that  this  did  not  charge 
devisee]  shall  take  care  of"  certain  C's  support  upon  the  land,  as  the 
relatives  named.  The  court  said  of  care  contemplated  was  entirely  per- 
these   words,   "It   is   only   a   recom-  sonal  in  its  nature.) 


LAW     or    WILLS. 


891 


the  direction  that  a  devisee  shall  support  a  named  person  is 
imperative,  and  not  precatory,  the  support  of  such  other  is 
held  to  be  a  charge  upon  the  land  devised.^^  The  courts,  how- 
ever, do  not  always  distinguish  carefully  between  a  charge 
upon  the  realty  for  the  support  of  one  and  a  gift  in  trust. 
Such  a  gift  is.  spoken  of  as  "a  trust,  or  a  charge  in  the  nature 
of  a  trust."^^  For  practical  purposes,  as  regards  the  enforce- 
ment of  such  a  claim,  there  is  but  little  difference  between  the 
tAvo.  However,  where  the  devisee  is  given  an  estate  for  life  if 
he  supports  his  sister,  and  is  authorized  to  dispose  of  the  fee, 
if  necessary  for  her  support,  it  was  held  that  by  exercising 
such  power  he  passed  the  fee  free  from  the  charge  for  the  sup- 
port of  the  sister.^'^ 


22  Bell   V.   Watkins,   104  Ga.   345. 
(The  expression  in  the  will  was:  "I 
further      will       that      my      grand- 
daughter  ....   do   receive   a   sup- 
port  during   her    lifetime   or    until 
she  should  marry."     The  court  said 
that  these  words  were  ''neither  prec- 
atory nor  recommendatory.")    Hun- 
ter   V.     Stembridge,     12     Ga.     192; 
Clark     V.     Marlow,     149     Ind.     41; 
Crossett    v.    Clements,   —     (Miss.) 
(1980),  7  So.  207;  Cady  v.  Cady,67 
Miss.    42,5  ;     Outland  v.  Outland,  113 
N.  C.  138.    (A  gift  to  E  &  C,  with  a 
provision   "in   consideration   of   the 
property  I  have  given  to  E  &  C,  they 
are   to   have   the   care   of   and   sup- 
port J,  and  it  is  my  will   that  he 
shall  have  his  choice  which  of  them 
he  will  live  with  and  the  other  pay 
half    of    the    expenses,"    was    held 
to  create  a  charge  upon  the  land  de- 
vised to  E  &  C.     Citing  and  follow- 
ing Laxton  v.  Tilley,  66  N.  C.  327  : 
Carter   v.   Worrell,   96   N.    C.    358; 
Thayer  v.  Finnegan,  134  Mass.  62; 
Meisenheimer   v.    SifTord,   94   N.   C. 
592.    (A  devise  to  A  "provided"  he 
would  support  B  was  held  to  create 
a    charge   upon   the   land   devised.) 


Gray  v.  West,  93  N.  C.  442;  (the 
provision  creating  the  charge  was 
"Arey  Gray  is  to  have  her  support 
out  of  the  land.")  Tope  v.  Tope,  13 
Ohio,  520. 

A  provision  that  testator's  widow 
shall    have    her    maintenance    from 
the  farm  devised  to  testator's  son, 
and  shall  have  the  use  of  the  house 
upon  such  farm  during  her  life,  docs 
not  oblige  her  to  reside  upon  such 
farm,   but   she   may   receive  a   sum 
equal    to   the   value   of   the   use   of 
the  house  and  the  cost  of  her  sup- 
port upon   the   farm   if   she  resides 
elsewhere.     Tope  v.  Tope,   13   Ohio, 
520 ;  Bank  of  Florence  v.  Gregg,  40 
S.   C.   169.     A  devise  to  A  of  "all 
the  residue  of  my  estate  both  real 
and   personal   and   to   his   care   the 
protection  and  support  of  my  daugh- 
ter C  during  her  natural  life"  was 
held   to   create   a   charge   upon   the 
realty  which   could   be   enforced   in 
equity,    even    in    the    hands    of    a 
bona  fide  holder.     Rivers  v.  Rivers, 
36  S.  C.  302. 

23  Bell  V.  Watkins,  104  Ga.  345. 
24Huey    V.    Thomas,    23    O.     S. 
645. 


892  LAW     OF     WILI.S. 

§752.     Direction  that  devisee  pay  money  to  another  as  a  charge. 

Devises  are  often  made  to  one  with  the  direction  that  he 
pay  a  certain  sum  to  another.  Whetlier  tJie  sum  thus  to  be 
paid  is  made  a  charge  upon  the  land  by  such  gift  is  a  question 
involving  some  difference  of  judicial  opinion;  but  it  can,  in 
general,  be  determined  by  the  same  principles  as  those  which 
determine  whether  a  direction  to  support  is  a  charge  upon 
property  devised  or  not.  A  gift  to  one,  subject  to  the  pay- 
ment of  a  specified  amount  to  another,  is  held  to  make  the 
payment  of  such  amount  a  charge  upon  the  land  devised. ^^ 
A  charge  upon  the  realty  of  a  sum  to  be  paid  by  the  devisee 
is  clearly  made  by  a  direction  that  the  sum  be  paid  out  of  the 
proceeds  of  the  property  devised.^*^  The  death  of  the  benefi- 
ciary after  the  legacy  is  payable  by  the  terms  of  the  will  does 
not  release  the  devisee  from  such  payment. ^^  But  a  provision 
that  the  devisee.  A,  shall,  on  B's  arriving  at  18,  pay  B  $1,000 
in  land  situate  where  A  can  buy  it,  does  not  create  a  charge 
upon  the  land  devised  to  A.^*  In  order  to  constitute  a  charge 
upon  the  land,  the  devise  must  be  to  the  person  who  is  to  fur- 

25/^1  re  Williams,    13  Rep.   31G;  Lloyd's    Esate,     174    Pa.    St.    184; 

Henry    v.    Griffis,    89    la.    543.     (A  Wise's  Estate,  188  Pa.  St.  258.     (A 

legacy   was   given   to   the   daughter  charge  was  created  by  a  gift  of  a 

and   a   devise   to   sons   with   a   pro-  farm  to  A,  and  a  direction  that   4 

vision   that,    if    the    personal   prop-  "is  to  pay  in  consideration  for  the 

erty  was  insufficient  to  pay  the  leg-  farm  bequeathed  to  him  by  me  the 

acy    "the    boys    is    to    pay    enough  balance  to  make  the  fire  daughters 

to  make  the  amount."  This  was  held  equal.")      Lefevre's  Estate,   171  Pa. 

to  create  a  charge  upon  the  realty.)  St.  404;  Block  v.  Mauck   (Tenn.  Ch. 

Curd    V.    Field     (Ky.),    45    S.    W.  App.),  52  S.  W.  689. 

92;   Whitehouse  v.   Cargill,   86  Me.  26  Hunkypillar    v.    Harrison,    59 

60 ;  Buchanan  V.  Lloyd,  88  Md.  642 ;  Ark.   453;    Lloyd's   Estate,   174   Pa. 

Chase   v.   Warner,    106   Mich.    695;  St.    184;    Semple's   Estate,    189   Pa. 

64  N.  W.  730;  Tucker  v.  Moye,  115  St.  385. 

N.  C.  71;  Hunt  v.  Wheeler,  116  N.  27  McDowell    v.    Stiger     (N.    J.), 

C.   422;    Allen  v.   Allen.    121   N.   C.  42  Atl.  575. 

328 ;   Wyckoff  v.  Wyckoflf ,  49  N.  J.  28  Cocmrad    v.    Coonrad,    6     Ohio, 

Eq.    344,    affirming    48    N.    J.    Eq.  114.      Hence    a    purchaser    from    A 

113;    McDowell   v.    Stiger    (N.   J.),  takes     the     realty     free     from     the 

42  Atl.  575 ;  Clyde  v.  Simpson,  4  O.  charge ;     and    is   not   bound   to   see 

S.   445;   Nellons  v.   Truax,   6  O.   S.  to   the  application  of  the  purchase 

97;    Weiler's    Estate.    169    Pa.    St.  money. 
66 ;  Pryer  v.  Mark,  129  Pa.  St.  529 ; 


LAW     OF     WILLS. 


893 


nish  the  support  or  make  the  payment.  Thus  a  direction, 
"the  hahmce,  if  any,  to  be  paid  by  my  three  sons  in  equal  j)ro- 
portions,"  referring  to  the  payment  of  the  legacy  already 
given,  does  not  charge  the  legacy  upon  real  estate  given  to  a 
trustee  in  trust  for  one  of  the  sons  and  his  family.^^ 

Gifts  of  this  sort  are  held  to  impose  charges  on  the  land  de- 
ri'sed,  rather  than  to  constitute  conditions  precedent,  when 
there  is  no  gift  over  in  case  of  failure  to  pay  the  beneficiary 
designated.  In  cases  of  doubt  the  presence  or  absence  of  a 
gift  over  is  held  to  determine  whether  the  will  creates  a  charge 
or  imposes  a  condition  precedent.^*^  And  where  it  is  left  to 
the  honor  of  the  devisees  to  pay  or  withhold  annuities,  no  in- 
tention is  manifested  to  make  such  annuities  a  charge  upon 
the  realty  devised.^^ 

§753.     Valuation  of  property  devised. 

A  devise  to  one  of  specified  land,  for  a  certain  amount, 
where  construed  as  an  option  to  the  devisees  named  to  pur- 
cliase  land  at  that  price,  is  held,  in  some  cases,  to  make  a 
charge  upon  such  land  of  the  amount  indicated.^^  But  the 
valuation  of  the  property  devised,  made  by  the  testator  in  his 
will,  may  be  simply  inserted  for  the  purpose  of  indicating  the 
proportionate  value  of  the  estate  which  he  wishes  each  devisee 
to  have.  Where  such  a  provision  is  inserted,  and  it  does  not 
amount  to  an  option  to  devisee  to  purchase,  the  sums  named 
are  not  legacies  charged  upon  the  realty.^^ 

29  Cissell  V.  Cashell,   76  Md.  330.  ate   a   charge   upon   the   real    estate 

30  Allen  V.  Allen,  121  N.  C.  328;  devised.  In  this  case,  Erwin  v.  Er- 
Whitehead  v.  Thompson,  79  N.  C.  win,  115  N.  C.  366,  in  which  it  was 
450 ;  Patterson  v.  Patterson,  63  N.  held  under  a  similar  provision  that, 
C.  322 ;  Woods  v.  Woods,  2  Jones'  as  a  payment  was  a  condition  pre- 
Eq.  420;  Erwin  v.  Erwin,  115  N.  C.  cedent,  the  sum  to  be  paid  could 
366,  is  criticized  as  being  a  "mere  not  be  charged  upon  the  land,  was 
dictum."  criticized    and   not   followed.) 

31  Larkin  v.  Larkin,  17  R.  I.  461.  33  Knaub's    Estate,    144    Pa.    St. 
32Wyckoff  v.   Wyckoflf,   49   N.   J.       322.     (A  devise  of  a  farm  to  A  "at 

Eq.   344,  affirming  48  N.  J.  Eq.   113;  ,$5,000,   and   another   tract   to  B   it 

Weiler's     Estate,    169     Pa.     St.    66.  ,$2,650  and  $5  to  the  daughter,"  was 

(In  Allen  v.  Allen,  121  N.  C.  328,  a  held  not  to  be  a  charge,  of  the  sums 

similar   provision   was   held   to   ere-  named,  upon  the  realty  devised  for 


894  LAW    OF    WILLS. 

§754.     Personal  liability  of  devisee. 

It  is  sometimes  important  to  determine  whether  a  devisee 
who  accepts  a  devise  given  to  him  upon  condition  of  his  pay- 
ing specified  amounts,  or  his  furnishing  support  and  main- 
tenance for  certain  persons,  merely  takes  subject  to  a  charge 
upon  property  devised,  or  whether  a  personal  liability  is  im- 
posed upon  the  devisee.  This  question  becomes  of  especial  im- 
portance when  it  develops  after  the  election  of  the  devisee  to 
take  the  property,  that  the  amount  devised  is  insufficient  to  pay 
the  amounts  which  he  agreed 'to  pay.  The  election  of  the  dev- 
isee to  take  under  the  will  makes,  in  effect,  a  contract  on  his 
part;  and  the  provisions  of  the  will  must,  therefore,  be  looked 
to,  to  determine  the  nature  of  his  liability. 

The  general  rule  laid  down  is  that,  where  the  will  shows  an 
intention  of  imposing  a  personal  liability  upon  the  devisee,  he 
becomes  personally  liable  upon  accepting  the  devise.^^ 

A  direction  that  the  legatee  of  testator's  interest  in  a  certain 
business  should  pay  testator's  debts  was  held  to  mean  all  his 
debts,  and  not  merely  those  secured  by  mortgage  on  the  prop- 
erty invested  in  the  business.^^  So  where  land  was  devised  to 
one  in  fee  simple,  upon  condition  of  paying  certain  legacies 
to  certain  designated  persons,  and  the  devisee  accepted  the  de- 
vise and  died  intestate  before  paying  all  the  legacies,  and  his 

the    benefit   of    the    personal    estate  254;     Millington    v.    Hill,    47    Ark. 

of  testator  which  was  not  disposeil  301;    Bishop  v.  Howarth,  59  Conn, 

of  by  will.)      Shenk  v.   Shenk,   150  455;     Porter    v.    Jackson.    95    Ind. 

Pa.    St.    521.      (A    devise    to   A    of  210;     Gilbert  v.  Taylor,   148   N.  Y. 

lands     "valued     and     appraised     at  298;     McEwen   v.   Fuller,   17   O.   S. 

$2,000,"   with   a  provision  that  the  288;     Case   v.    Hall,    52    0.    S.    24; 

widow    should    receive   one-third   of  Sauer  v.  Mollinger,  138  Pa.  St.  338. 

the  yearly  interest  at  the  valuation  ("If  the  devisee  in  such  case  accepts 

made    in    the    will,    and    that    the  the    devise,    he    becomes    personally 

brothers  and  sisters  of  the  testator  bound  to  pay  the  legacies;    and  he 

should  have  the  first  option  of  pur-  becomes    thus    bound,    even    if    the 

chasing    at    the    valuation     named  land   devised   to   him   proves   to   be 

should  he  wish  to  sell,  it  was  held  less   in   value   than   the   amount   of 

not  to  be  a  charge  upon   the  prop-  the  legacy.")      Brown  v.  Knapp,  79 

erty  devised   of   the   sum  of   $2,000  N".   Y.   136. 

for    the    benefit   of    the    other    chil-  35  Bishop   v.    Howarth,    59    Conn, 

dren.)  455. 
S4  Williams    v.    Nichol,    47     Ark. 


LAW    OF    WILLS. 


895 


real  estate  descended  to  the  persons  to  whom  the  legacies  were 
payable,  it  was  held  that  the  personal  estate  of  such  devisee 
was  liable  for  the  legacies  as  upon  a  debt  which  he  had  as- 
sumed and  agreed  to  pay.^^  In  no  case,  of  course,  does  the 
devisee  become  personally  liable  unless  he  accepts  the  de- 
vise.^^ 

But,  where  the  direction  either  directly  or  impliedly 
shows  that  the  devisee  is  required  to  pay  the  legacy  out  of  the 
proceeds  of  the  property  devised  to  him,  he  is  not  held  liable 
in  excess  of  the  amount  of  such  property.^^  Where  the  devise 
or  bequest  is  merely  of  the  net  proceeds  of  testator's  interest 
in  a  firm,  the  beneficiary  does  not  become  personally  liable 
for  the  debts  of  the  firm  if  they  exceed  the  assets.*^^ 

After  the  beneficiary  has  made  his  election  lo  take  the  prop- 
erty devised  to  him,  and  to  assume  the  personal  liability  im- 
posed upon  him,  he  can  not  repudiate  the  devise  and  thereby  re- 
lease himself  from  the  personal  liability.^^ 

§755.     Effect  of  residuary  clause  blending  realty  and  personalty. 
— Charge  of  debts  and  legacies  on  realty. 

In  many  cases  where  a  testator,  after  giving  certain  legacies 
and  making  disposition  of  specific  articles,  gives  the  rest,  or 
residuum,  or  remainder  (or  employing  some  expression  of 
similar  import),  to  the  residuary  legatee,  such  a  form  of  gift  is 
held,  to  show  testator's  intention  in  case  of  a  deficiency  in 
personalty  to  charge  the  unpaid  legacies  upon  the 
realty   devised   by   such     a   residuary   clause.^^     In    order   to 

36  Case  V.  Hall,  52  0.  S.  24.  4o  Bird   v.   Hawkins    (N".   J.),   42 

37  Wyckoff  V.   Wyckoflf,   48   N.  J.       Atl.  588. 

Eq.    113;    also   49   N.   J.   E.   344.  ^i /n  re  Boards  (1895)  .1  Ch.  499 : 

38  Hunkypillar  v.  Harrison,  59  64  L.  J.  Ch.  N.  S.  305;  In  re 
Ark.  453;  Pitkin  v.  Peet,  87  lo.  268.       Bawden  (1894),  1  Ch.  693;  Cameron 

(This  is  the  official  opinion  on  the  v.  Harper,  21  Can.  S.  C.  273;  Walk- 
final  hearing.  The  original  opinion  er  v.  Atmore,  50  Fed.  644  ;  Readman 
was  reported  in  50  N.  W.  282,  but  v.  Ferguson,  13  App.  D.  C.  60; 
was  subsequently  withdrawn,  and  Brooks  v.  Brooks,  65  111.  App.  326: 
was  never  published  officially.)  Reid  v.  Corrigan.  143  HI.  402,  re- 
Crawford  V.  McCarthy,  159  N.  Y.  versing  40  111.  App.  404;  American 
514.  Cannel    Coal    Co.    v.    Clemens,    132 

39  Robertson  v.  Junkin,  26  Can.  Ind.  16.3:  Newcomb's  Will.  98  la. 
S.  C.  R.  192.  175:  67  N.  W.  587;  Peebles  v.  Ack- 


896 


LAW    OF    WILLS. 


charge  the  general  legacies  upon  the  real  estate  devised  Lj  the 
residuary  clause,  such  residuary  clause  must  blend  real  and 
personal  property  into  one  general  residuum.*^  Where  from 
the  context  of  the  whole  will  the  expression  "balance  of  my 
estate,  real,  personal  and  mixed,"  was  so  used  that  the  word 
"balance"  referred  exclusively  to  the  personal  property  it  was 
held  that  general  legacies  were  not  charged  upon  this  real 
estate.^ ^  So  a  gift  of  all  testator's  real  property  and  all  the  rest 
and  residue  of  his  personal  property  does  not  charge  legacies 
previously  given  by  the  will  upon  the  real  estate.'*'*  In  some 
states,  however  the  mere  use  of  the  residuary  clause  blending 
realty  and  personalty  into  one  fund  does  not,  of  itself,  show 
testator's  intention  to  charge  general  legacies  upon  the  real 
estate  devised  by  such  a  residuary  clause*^  In  such  jurisdic- 
tions additional  circumstances  are  necessary  to  show  testator's 
intention  to  charge  the  legacies  upon  the  realty.     Thus  a  life 


er,  70  Miss.  356;  McQueen  v.  Lilly, 
131  Mo.  9;  Carter  v.  Gray  (N.  J.), 
43  Atl.  711;;  Hoboken  First  Bap- 
tist Church  V.  Syms,  51  N.  J.  Eq. 
363;  Turner  v.  Gibb,  48  N.  J.  Eq. 
520;  Hassel  v.  Hassel  (2  Dickens), 
527 ;  Townsend  v.  Townsend,  25 
0.  S.  477;  Moore  v.  Beckwith,  14 
0.  S.  129;  Long-ley  v.  Stump,  11 
W.  L.  B.  247;  Markley's  Estate, 
148  Pa.  St.  538;  Dennis'  Estate, 
169  Pa.  St.  493;  Collins  v.  Reid, 
—  (Pa.  St.)  — ;  23  Atl.  1108; 
Bird  V.  Stout,  40  W.  Va.  43. 

This  rule  applies  although  the 
residuary  devise  may  lapse,  testa- 
tor's intention  to  charge  the  specific 
legacies  upon  the  residuary  property 
not  being  dependent  upon  a  valid 
devise  of  such  property. 

Bennett's  Estate,  148  Pa.  St.  139. 

Where  the  residuary  clause  failed 
and  the  personalty,  if  properly  ad- 
ministered, would  be  sufficient  to 
pay  all  legacies,  it  was  held  that 
testator  did  not  intend  to  charge 
legacies  upon  the  realty.     • 


Allen  V.  Mattison  ( R.  I. ) ,  39  Atl. 
241,  3  Prob.  Rep.  Ann.  428.  [Hence, 
if  the  executor  wastes  the  person- 
alty, the  realty  could  not  be  re- 
sorted to.] 

42  See  cases  cited  in  preceding 
note. 

43  Allen  V.  Rudell,  51  S.  C.  366 
(distinguishing  Moore  v.  Davidson, 
22  S.  C.  92  and  Jaudon  v.  Ducker, 
27  S.  C.  295,  a  case  in  which  the 
residuary  clause  was  so  worded  as 
to  blend  realty  and  personalty). 
So,  McMahon  v.  McGuire,  6  Ohio 
C.  C.   303. 

44  In  re  Jamieson,  18  R.  I.  385. 

45  Stevens  v.  Gregg,  10  G.  &  .J. 
(Md.),    143;     Power  v  Jenkins,   13 

Md.  443;  White  v.  Kaufmann,  66 
Md.  89;  Pearson  v.  Wartman,  80 
Md.  528;  McCorn  v.  McCorn,  100 
N.  Y.  511;  Brill  v.  Wright,  112 
N.  Y.  129;  Morris  v.  Sickly,  133 
N.  Y.  456. 


LAW    OF    WILLS.  ^^"^ 

estate  in  the  first  taJ^er,  with  power  to  dispose  of  tlie  personal 
property  absolutely  with  remainder  over  to  certain  designated 
persons,  and  a  gift  of  a  legacy  payable  upon  the  determination 
of  the  life  estate  was  held  to  show  testator's  intention  to  charge 
tlie  legacy  upon  the  realty,  since  under  the  power  of  disposi- 
tion of  personal  property  in  the  first  taker  there  might  be  no 
personal  estate  at  the  termination  of  the  life  estate,  no  matter 
how  large  it  may  have  been  at  testator's  death.''^     Extrinsic 
evidence  of  surrounding  circumstances  may  be  used  to  show 
testator's  intention  to  charge  the  legacies  upon  the  realty."^^ 
Thus  a  residuary  clause  blending  realty  and  personalty  to- 
gether with  the  fact  that  the  legacies  were  largely  in  excess 
of  the  personalty  at  the  time  of  the  execution   of  the  will, 
were  held  to  show  testator's  intention  to  charge  the  legacies 
upon  the  realty.'** 

§756.     Effect  of  blending  realty  and  personalty.— Exoneration  of 
personalty. 
A   residuary    clause    in   which   realty   and    personalty    arc 
blended  shows  testator's  intention  that  the  legacies  should  be 
charged  upon  the  realty  if  the  personal  property  is  insufficient, 
but  it  does  not,  without  further  evidence  of  testator's  inten- 
tion, exonerate  the  personalty  from  the  pa.^anent  of  the  lega- 
cies and  cast  their  pavment  upon  the  realty.    The  realty  should 
be  used  only  to  pay  any  deficiency  remaining  after  the  person- 
alty has  been  exhausted.-'^  So  where  the  residue  after  the  pay- 
ment of  certain  lea^acies  is  given  to  testator's  heirs  or  is  by 
any  form  of  words  disposed  of,  as  in  case  of  intestacy,  the 
realty  is  charged  with  the  payment  of  the  legacies  whether  the 
heirs  are  to  be  considered  as  taking  by  descent  or  by  devise. 

.6  O^le  V.  Tavloe.  49  Md.  158.  McCorn  v.  MeCorn.  100  N.  Y^  511 ; 

47  Brill    V.    Wright,    112    N.     Y.       C_orwine  v.   Corwine,   24   N.   J.   Eq. 

•      ''!;Bri..s    V.    Carroll,    117    N.   Y.  ".'o /n  re  Boards  (1805),  iCh  499 . " 

288;    50^Hun,    58G ;    Cross   v.   Kea-  G4   L.   J.   Ch    >.   S.   305 :   MUler  v. 

ninmon.    9    Beav.    150;    Duncan   v.  Cooch,   5   Del.   Ch     101 

Wallace,    114    Ind.     109:    Davidson  ^  J-^c^^Ios  v.  Ackor.  .0  M.ss.  3oG , 

V.   Coon,   125  Ind.  497:   9  L.  R.   A.  Root's   ^^.ll,   81   Wis.   2G3. 
584;   Hoyt  v.  Hovt,  85  N.  Y.   142 -. 


398  ^-^^  o^   WILLS. 

8757.     What  words   show  testator's   intention  to  blend  realty 
and  personalty. 

In  most  states  which  recognize  the  rnle  already  given,  the 
use  of  the  word  "residne"  or  ''rest,"  or  some  similar  expression, 
is  held  to  be  sufficient  to  show  testator's  intention  to  blend 
real  and  personal  property.^  ^  So  the  expression  "my  real  and 
personal  estate  not  herein  disposed  of"  shows  snch  intention.^- 
Where  the  residnary  clanse  shows  testator's  intention  not  to 
charo-e  previous  legacies  upon  the  real  estate,  such  intention 
will  of  course  be  given  effect  and  will  prevail  over  the  prima 
facie  presumption  in  the  absence  of  any  express  intention  that 
the  legacies  were  charged  upon  the  real  estate.^^ 

§758.     Charging  legacies  upon  realty  specifically  devised. 

Realty  specifically  devised  can  only  be  charged  with  lega- 
cies either  by  specific  provision  in  testator's  will,  or  by  clear 
and  unmistakable  implication  from  the  whole  will,  read  in 
connection  with  tlie  surrounding  circumstances.^^  "Si>ecific 
legacies  and  specific  devises  are  not  chargeable  with  the  pay- 
ment of  demonstrative  or  general  legacies  unless  made  so  ex- 
pressly or  by  clear  implication."^^  Thus  in  some  jurisdic- 
tions it  is  held  that  a  legacy  greatly  in  excess  of  testa- 
tor's personal  estate,  together  with  a  specific  devise  of  so  much 

51  See  cases  already  cited  in  Sec.  as  to  show  an  intention  to   charge 

755,   and   Bench   v.   Biles,   4   Madd.  the  legacies  upon  the  proceeds  of  the 

187;    Greville  v.    Browne,   7    H.    L.  realty.)       Distinguishing    Smith    v. 

Cas.  689;  Clarke  v.  Clarke,  46  S.  C.  First  Presbyterian  Church,  11  C.  E. 

230.  Green,  132;  Smith  v.  Mason,  89  Va. 

52 /n   re   Bawden     (1894),    1    Ch.  713    (a   residuary   devise   of   realty 

693;     Hassel  v.   Hassel,   2   Dickens,  and    personalty,    blended    expressly 

527.  for  the  purpose  of  seF-ing  and  vest- 

53  Johnson   v.    Conover,    54   N.   J.  ing,    was    held    not    to    charge    the 

Eq.    333.      (A   direction   to   convert  legacies  upon  the  realty) . 

the  real  property  into  personal  prop-  ^4  Hibler  v.  Hibler.  104  Mich.  274 ; 

erty  for  the  purpose  of  distribution  Johnson   v.   Poulson,    32   N.   J.   Eq. 

among    certain    designated    benefic-  390;    Bevan    v.    Cooper,    72    N.    Y. 

iaries,    and    a    residuary    devise    of  317. 

the  proceeds  of  the  real  estate  and  ss  Hibler    v.    Hibler,     104    Mich, 

the    personal    property    separately,  274. 
was  held  not  to  be  such  a  blending 


LAW    OF    WILLS.  899 

of  testator's  real  property  to  others  that  the  residue  is  entirely 
inadequate  for  the  payment  of  legacies,  shows  testator's  inten- 
tion to  charge  the  legacy  upon  the  real  property  specifically 
devised.^^  A  gift  of  an  annuity  to  testator's  widow  and  a 
devise  of  his  realty,  one-third  to  widow  and  two-thirds  to 
others,  "saving  and  excepting"  the  gifts  to  the  wife,  was  held 
to  show  testator's  intention  to  charge  the  annuity  upon  the 
two-thirds  of  the  realty  devised  to  others.^^  But  a  residuary 
clause,  blending  realty  and  personalty  does  not  charge  specific 
legacies  upon  realty  specifically  devised,^^  nor  does  a  charge 
of  legacies  in  general  terms  upon  all  of  testator's  real  and 
personal  estate  show  his  intention  to  charge  realty  siDccificall^ 
devised.^^  Where  testator  devised  certain  realty  to  his  widow 
during  widowhood  with  a  gift  over  if  she  re-married,  the 
widow  to  have  an  annuity,  it  was  held  that  the  annuity  was 
not  charged  upon  the  land  thus  devised  over.'^°  Where  a  leg- 
acy is  specifically  devised  upon  land  which  is  devised  to  an- 
other, the  lapse  of  such  devise  does  not  pre^'ent  the  legacy  from 
being  charged  upon  such  land,"^  nor  is  the  lien  thus  created 
by  will  divested  by  a  failure  to  specify  the  lien  in  a  deed 
given  pursuant  to  a  sale  of  the  premises  in  partition  proceed- 
ings.^" Where  an  annuity  is  charged  upon  the  land  devised 
to  two  devisees,  the  charge  of  such  annuity  is  not  modified  by 
subsequent  codicil  changing  the  proportions  of  the  devisees  of 
such  land;^^  but  one  of  such  devisees  may  by  his  will,  de- 
vising his  share  for  the  payment  of  the  annuity,  the  residue 
to  a  specified  person,  charge  the  annuity  jirimarily  upon  his 

56  Bank  of  Ireland  v.  McCarthy  627;  Todd  v.  McFall.  !)(;  Va.  754 
(H.  L.)  (1898),  A.  C.  181,  affirm-  especially  where  the  real  e.state  spe- 
ing  C.  A.  1894,  1  Ir.  Rep.  86.  eifically  devised  was  executed  from 

57  Kinkele  v.  Wilson,  151  N.  Y.  the  operation  of  a  power  of  sale  of 
269.  realty  in   order  to  pay  the  legacy; 

58  Peet's  Estate,  99  lo.  314;  68  Johnson  v.  Home  for  Aged  Men. 
N.    W.    705;    Phillips   v.    Clark,    18  152  IMass.   89. 

R.   I.   627.  00  linias    v.    Neidt,    101    la.    .34*^ ; 

59  Conron  v.  Conron,  7  H.  L.  Cas.       70   N.   W.   20.3. 

168 ;   Davenport  v.   Sargeant,  63  N.  ei  Cady  v.  Cady,  67  Miss.  425. 

H.  538;  Hill  v.  Toms,  87  N.  C.  492;  C2  Nesbit  v.  Wood    (Ky.)     (1900), 

Worth    V.    Worth,    95    N.    C.    2.39:  56  S.  W.  714. 

Kitchell    V.    Young,    46    N.    J.    Eq.  bs  Redfield  v.  Redfield,   126  N.  Y. 

506;     Phillips    v.    Clark,    18    R.    I.  466. 


900 


LAW     OF     WILLS. 


share.^*     A  charge  upon  a  specific  tract  in  favor  of  a  bene- 
ficiaiy  is  not  a  charge  upon  the  interest  of  such  beneficiary  in 

such  tract.^^ 

8759.     Charging  legacies  upon  personalty  specifically  bequeathed. 

Testator  may  also  by  will  charge  a  legacy  upon  personalty 
which  is  specifically  bequeathed  to  others.'^'^  Thus  a  gift  of 
property  invested  in  a  certain  business  ''after  payment  of  my 
debts  which  are  to  be  paid  from  said  personal  property,"  was 
held  to  charge  the  payment  of  all  of  testator's  debts  upon  such 
personal  property  ;'^^  and  a  gift  to  A  of  a  certain  portion  of 
testator's  estate  free  of  all  legacies  and  a  gift  to  others  of 
the  rest  of  testator's  estate  after  pa^mient  of  such  legacies, 
charges  the  legacies  upon  the  property  bequeathed  to  such 
others.*^*  So  a  gift  of  the  residuum  of 'testator's  estate  to  A, 
with  a  provision  that  A  shall  pay  the  general  indebtedness  of 
a  certain  corporation  as  well  as  a  mortgage  owing  by  it, 
charges  such  residuum  with  the  payment  of  such  debts.^^  A 
charge  of  any  deficiency  in  one  fund  at  the  time  of  the  division 
upon  the  other  fund  does  not  authorize  the  appropriation  of 
a  part  of  such  other  fund  after  the  final  division  to  make  up 
a  deficiency  in  the  first  fund  caused  by  depreciation  in  in- 
vestments,'*' nor  can  a  deficiency  in  one  fund  expressly  charged 


64  Brown   v.    Hord    (Kt.)<    15    S. 
W.  874;   12  Ky.  Law  Rep.  916. 

65  Southworth   v.    Sebree,   —  Ky. 
— ,  1897  ;  41  S.  W.  769. 

66  Wethered  v.  Safe  Deposit  and 
Trust  Co.  79  Md.  421 ;  Hale  v.  St. 
Paul,  54  Minn.  521 ;  Coane  v.  Ear- 
ned, 51  N.  J.  Eq.  554;  Woodward 
V.  James.  115  X.  Y.  .340:  Fargo  v. 
Squiers,  154  N.  Y.  250;  Addeman 
V.Rice,  19  R.  I.  30,  1896:  31  Atl. 
429;  Webster  v.  Wiggin,  19  R.  I.  73; 
34  Atl.  990;  Patten  v.  Herring,  9 
Tex.  Cir.  App.  640.  Prima  facie 
rules  for  determining  out  of  what 
part  of  testator's  property  his  debts 
are  payable  are,  of  course,  subject  to 
be  varied  by  specific  directions  in 
his  will.  Such  directions  can  not,  of 
course,    go    to    the    extent    of    pre- 


venting the  payment  of  his  debts.  If 
testator  provides  for  the  payment 
of  his  debts,  he  may  charge  such 
payment  ujjon  property  bequeathed 
or  devised  to  the  exoneration  of  oth- 
er property  at  his  discretion.  In 
re  Campbell  (1893),  2  Ch.  200; 
Parker  v.  First  National  Bank,  12 
O.  C.  C.  287 ;    1  O.  Dec.  549. 

67  Bishop  V.  Howarth,  59  Conn. 
455. 

68  Coane  v.  Harned,  51  N.  J.  Fq. 
554;  Woodward  v.  James,  115  N. 
Y.  346. 

69  Cowherd  v.  Kitchen,  57  Xeb. 
420. 

70  Weston  v.  Massachusetts  Gen- 
eral Hospital,  169  Mass.  76;  47  X. 
E.    444. 


LAW     OF     WILLS.  901 

on  a  second  be  taken  out  of  a  third.'^^  A  charge  of  certain 
debts  and  legacies  upon  an  annual  income  is  held  to  mean  that 
each  year's  income  must  be  paid  as  it  accrues,  less  such  debts 
and  legacies.  Hence  the  income  can  not  be  accumulated  to 
meet  future  payments,  even  if  in  some  years  the  debts  and 
legacies  payable  will  exceed  the  income.^^ 

§760.     Enforcement  of  lien  of  legacy. 

Where  a  legacy  is  specifically  charged  upon  certain  realty 
this  lien  may  be  enforced  under  some  system  of  settlement  of 
decedent's  estate  or  by  sale  of  realty  under  proceedings  in 
the  Probate  Court.  Unless  the  right  to  enforce  such  liens  is 
by  statut-e  expressly  or  impliedly  taken  away  from  equity 
courts  and  vested  exclusively  in  probate  courts,  equity  courts 
may,  in  the  exercise  of  their  ordinary  jurisdiction,  enforce 
such  liens  at  the  instance  of  the  legatee.'^^  Where  a  legacy  is 
charged  upon  land  which  is  described  as  being  the  property 
devised  to  a  given  beneficiary,  the  legacy  is  held  to  be  charged 
upon  the  fee  of  such  land  although  the  first  taker  received  only 
a  life  estate-'''^  So  where  a  life  estate  was  devised  to  one  upon 
condition  that  the  income  from  such  estate  be  applied  to  pay 
certain  legacies  in  full  and  the  life  tenant  died  before  the  lega- 
cies were  paid  it  was  held  that  the  legacies  were  charged  upon 
the  fee  of  such  property.'^^  Where  there  is  no  question  as  to 
the  validity  of  the  lien,  the  devisee  can  not  object  to  a  decree 
declaring  the  legacy  a  lien  on  the  ground  that  the  court  erred 
in  determining  the  priority  of  liens,  the  adversary'  lien-holder 
himself  making  no  objection.'^'^  The  question  whether  a  lien 
imposed  by  will  in  favor  of  a  legatee  may  be  subsequently  di- 
vested by  judicial  action  by  which  the  devisee's  interest  in  the 
realty  is  sought  to  be  subjected  to  the  payment  of  claims  against 
him,  and  the  question  whether  the  lien  of  the  legacy  is  there- 

TiMorse  V.  Macrum,  22  Oreg.  229;  Breck  v.  Parkes    (Ky.)     (1896),   37 

237.  S.   W.  271. 

'2  Hale  V.  St.  Paul,  54  Minn.  421.  ^5  Pendleton  v.  Kinney,   65  Conn. 

73  Smith    V.    Jackman,    115    Mich.  222. 

192.  76  McFarland   v.    McFarland,    177 

74  Miller    v.   Miller,    100   Ky.    37;        III.  208. 


902  LAW    OF    WILLS. 

bj  transferred  to  such  fund,  are  questions  in  the  law  of  real 
property,  the  discussion  of  which  would  carry  us  far  beyond  the 
domains  of  our  subject.  Whether  the  lien  is  divested  or  not, 
it  is  held  that  the  legatee  may,  if  he  choose,  follow  the  fund."^' 
If  the  purchase  price  is  unpaid,  the  legatee  may  enforce  pay- 
ment of  the  legacy  out  of  the  unpaid  purchase  price.* 

In  Pennsylvania  it  has  been  held  that  a  sale  on  execution 
against  the  devisee  cuts  off  all  liens  created  by  devise  except 
(1)  liens  created  for  a  permanent  provision  for  testator's 
wife  and  children,  (2)  incumbrances  which  from  their  nature 
readily  permit  of  a  valuation,  (3)  liens  which  testator  evi- 
dently intended  to  run  with  the  land."^^ 

§761.     Enforcing  personal  liability  of  devisee. 

Where  by  accepting  the  devise,  the  devisee  becomes  person- 
ally liable  for  the  payment  of  the  legacies  and  an  action  may 
be  maintained  against  him  at  law.'^  Where  the  devisee  has 
conveyed  his  interest  in  realty  which  was  subject  to  the  lien 
of  a  legacy  an  action  at  law  may  be  maintained  against  the 
grantee  of  such  devisee,  who  agreed  to  pay  such  legacy  and 
retains  in  his  hands  sufficient  purchase  money  for  that  pur- 
pose.^^  The  right  of  a  beneficiary  to  be  supported  by  a  de- 
visee is  not  waived  by  his  offer  to  release  his  rights  for  a  cer- 
tain sum  if  paid  within  a  specified  time  ;^^  it  may,  however, 
be  waived  for  the  time  being  where  the  right  is  merely  a  right 
to  support,  by  accepting  support  from  others.^^ 

77  Phillips  V.  Clark,  18  R.  I.  627.  It  was,  therefore,  cut  off  by  a  sale 
(In  this  case  it  was  held  that  the  on  execution  directed  against  the 
lien   was   not   divested.)  last    beneficiary.      Washburn's    Es- 

*Elstner   v.    Fife,    32   O.    S.    358.       tate.   187   Pa.   St.   162. 

78  Stewartson  v.  Watts,  8  Watts  79  Miller  v.  Lake,  24  W.  Va.  54.). 
(Pa.),  392:  Heister  v.  Green,  48  Pa.       See  Sees.  751,  754. 

St.  96;   Helfrich  v.  Weaver,  61  Pa.  so  Bird   v.   Stout.   40   W.   Va.   43. 

St.   385;   Pierce  v.  Gardner.  83  Pa.  si  Hunt    v.    Wheeler,    116    N.    C. 

St.  211;    Bryan's  App.   101  Pa.  St.  422. 

389:   Rohn  v.   Odenwelder,   162   Pa.  sa  Dickson  v.  Field,  77  Wis.  439: 

St.   346.     Ihus  a  devise  of  the  in-  9  L.  R.  A.  537.      (A  woman's  right 

come  of  certain  realty  to  a  daughter  to   receive   support   from    a   devisee 

for  life,  and  then  a   specific  legacy  was  held   to   be  waived  by  her   re- 

to  a  granddaughter  and  the  residue  ceiving  such  support  from  her  hus- 

to    a   named   beneficiary,    was   held  band,  but  was  held  to  revive  upon 

not  to  be  a  continuing  lien  of  realty.  the  death  of  such  husband.) 


LAW    OF    WILLS.  ^^"^ 


§762.     General  rules  as  to  charge  of  testator's  debts. 

The  subject  of  the  payment  of  debts  of  testator  out  of  his 
estate  involves  the  whole  of  the  subject  of  the  settlement  of 
decedent's  estate,  and  can  be  discussed  in  this  work  only  so  far 
as  the  specitic  provisions  of  testator's  will  affect  the  subject. 
Originally   the   common   law   did   not   permit   lands   to   be 
charo-e'd  with  general  debts  either  during  the  lifetime  of  the 
owner  or  at  his  death.     The  debts  of  the  living  man  might  bo 
enforced  out  of  his  personal  property,  or  by  execution  against 
his  person.     The  debts  of  the  decedent  could  be  enforced  only 
out  of  his  personal  estate  unless,  by  his  will,  he  specifically 
charged  debts  upon  his  real  estate,  and  at  this  time  wills  of 
realty  existed  only  by  local  custom.     The  necessities  of  trade 
and  commerce  forced  a  series  of  statutes  provided  for  taking  a 
part  or  all  of  the  real  property  of  a  debtor  for  the  pa:>mient  of 
his  debts.*     It  became  established  then,  that  debts  of  record 
and  debts  upon  specialties  could  be  enforced  against  the  heir  of 
the  debtor  to  the  extent  of  the  assets  received  by  him  from  his 
ancestor.     It  was  possible,  however,  for  the  ancestor  to  defeat 
the  payment  of  all  debts  not  liens  upon  his  realty  by  devising 
it  to  some  one  other  than  the  heir.t 

These  rules  of  the  common  law  have  been  swept  away  by  a 
series  of  statutory  enactments  until,  with  the  exception  of  cer- 
tain specified   exemptions,   homestead   rights   and   the  like,   a 
debtor's  entire  estate  both  real  and  personal  may  be  taken  for 
his  debts  while  he  lives  and  is  charged  with  them  at  his  death. 
At  his  death  his  debts  under  modern  statutes  become  a  lien 
upon  his  realtv,  which  lien  can  not  be  divested  by  devising  the 
realtv  to  one  not  an  heir,  nor  by  sale  by  the  heirs.     It  is  di- 
vested either  by  actual  payment  of  all  testator's  debts  or  by 
sale  under  authority  of  the  law  for  the  purpose  of  paying  such 
debts,  usually  by  proceeding  brought  for  that  purpose  by  the 
executor  or  administrator  in  the  court  of  probate  powers  before 
which  decedent's  estate  is  in  process  of  settlement  or  m  whose 
jurisdiction  the  realty  to  be  sold  is  situate. 

*  Blacks.    Com.,    Bk.   II,    160-162.  t  Blacks.   Com.,   Bk.   II,   244. 


904  LAW    or    WILLS. 

Under  common  law  rules  the  question  whether  a  will  charged 
debts  upon  the  realty  or  not  was  a  very  important  and  vital  one 
to  the  creditors,  since  without  some  such  provision  the  debts 
could  not  be  collected  in  case  of  deficiency  in  personalty.  Under 
our  modern  statutes,  this  subject  is  usually  of  no  practical  im- 
portance to  creditors,  since  testator  can  not  so  dispose  of  his 
property  by  will  as  to  prevent  the  payment  of  his  debts  out  of 
his  estate.  In  some  eases,  however,  even  under  modern  statutes, 
the  question  whether  testator  charged  his  real  estate  specifically 
with  the  payment  of  his  debts  may  be  a  very  important  one  for 
the  creditors.  Thus  under  our  modern  statute  a  time  limit  is 
set  within  which  debts  must  be  presented  to  the  executor  or 
administrator.  After  the  expiration  of  tliis  time  the  personal 
representatives  may  with  safety  settle  the  estate  and  distribute 
the  proceeds,  and  after  such  distribution  the  extent  to  which 
the  creditors  of  the  testator  may  follow  the  proceeds  of  his 
estate  into  the  hands  of  the  legatee  or  devisee  depends  upon 
the  provisions  of  the  statute.  In  some  cases  where  the  creditors 
have  delayed  so  long  that,  under  the  law,  they  are  unable  to 
enforce  their  liens  upon  the  estate  of  the  decedent,  a  specific 
provision  in  his  will,  charging  the  debts  upon  the  real  estate, 
may  still  protect  their  riglits.^^ 

The  usual  practical  importance  of  the  question  whether  a 
will  charges  debts  upon  the  realty  or  not  remains  in  determin- 
ing the  respective  rights  of  those  who  would  take  personal 
property  of  the  decedent  and  those  who  would  take  in  the  real 
property  whether  under  the  law  or  by  the  will  as  between  them- 
selves. Under  modern  statutes  they  have,  apart  from  certaia 
statutory  exemptions,  like  homestead  rights,  no  rights  as 
against  testator's  creditors  where  property  devised  was  neces- 
sary for  the  payment  of  testator's  debts.  As  between  them- 
selves, however,  in  case  the  property  of  testator  is  insufficient 
to  pay  his  debts  and  leave  a  surplus,  it  is  very  important  to 
determine  whether  the  debts  are  to  be  paid  out  of  the  realty 
or  personalty. 

In  the  absence  of  any  specific  provision  in  the  will,  testa- 
tor's debts  are  payable  primarily  out  of  his  personal  property ; 

83  Clift  V.  Moses,  116  N.  Y.  144. 


LAW    OF    WILLS.      •  ^^ 


his  realty  may  be  resorted  to  only  in  case  of  a  deficiency  in 
personal  property.«^  Where  the  income  of  the  realty  is  de- 
vised in  trust,  the  income  can  not  be  taken  for  testator's  debts 
until  the  personalty  is  exhausted.«^  Testator  may,  of  course, 
change  this  order  of  paying  his  debts,  as  long  as  he  does  not 
interfere  with  the  rights  of  his  .creditors,  and  may  charge  some, 
or  all  of  his  realty  with  the  payment  of  his  debts  to  the  exon- 
eration of  his  personalty. 

§763.     Exoneration  of  personalty  from  debts. 

If  testator  leaves  sufficient  property  devoted  te)  the  payment 
of  his  debts,  he  may  provide  that  certain  personalty  shall  pass 
to  the  legatees  free  from  any  charge  or  contribution  for  the 
payment  of  his  debts-^*^  Thus  a  gift  of  one-third  of  the  re- 
siduum of  testator's  estate  "free  and  clear  from  the  payment  ot 
all  debts,  legacies,  expenses  of  administration  and  other 
charo-es,"  exonerates  such  third  from  the  payment  oi  these 
items  and  charges  them  upon  the  other  two-thirds  of  the  resid- 


07 

uum. 


Testator's  intention  to  exonerate  a  bequest  from  his  debts 
may  be  inferred  from  the  context  of  the  will. 

Thus  a  o-ift  of  a  certain  fund  for  the  support  of  a  designatea 
person  has"  been  held  to  be  exonerated  from  payment  of  tes- 
tator's debts,  it  being  testator's  evident  intention  that  m  ail 
events  this  support  should  be  funushed.«« 

A  bequest  to  testator's  widow  in  lieu  of  her  dower  has  been 
held  to  be  impliedly  exonerated  from  the  payment  of  testator  s 
debts  «^  Where  testator  attempted  to  pass  his  ovm  residuary 
estate  and  that  over  which  he  had  power  of  appointment  by 
a  bequest  which  was  valid  as  to  his  own  property,  but  m  vio- 
lation of  the  rule   against  perpetuities   as  to  the   fund   over 

s.  Morse  v.  Hayden,  82  Me.  227  ;  «.  Addeman  v    Rice,   19  R.  I.   30, 

Newport  v.  Newport,  5  Wash.  114.       1895:  31  Atl.  429. 

S5  Newport  v.  Newport,   5  Wash.  bs  Patten  v.  Herring,  9  Tex.  Cn. 

App.  640. 

,         ,         T        o    nr;  >J   Y  soCalder  v.  Curry,  17  R.  I.  CIO. 

86  Woodward  v.  James,  115  JN.  X. 

346;    Fargo  v.    Squiers,    154   N.   Y.       See  Sec.   -76. 

250;  Addeman  v.  Rice,  19  R.  I.  30; 

31   Atl.   429:    Patten  v.   Herring,  9 

Tex.  Cir.  App.  040. 


906  LAW    OF    WILLS. 

which  he  had  power  of  appointment,  the  court  will  carry 
his  intention  into  effect  as  nearly  as  can  be  done  by  applying 
the  fund  over  which  he  had  the  power  of  appointment  to  the 
payment  of  specific  bequests,  leaving  testator's  property  for 
the  residuary  beneficiaries.^*^ 

§764.     What  words  charge  debts  upon  realty. 

The  question  to  be  determined,  therefore,  is  that  of  the  testa- 
tor's  intention. 

One  of  the  clauses  presented  most  frequently  for  adjudica- 
tion is  a  direction  to  the  executor  to  pay  testator's  debts  out  of 
his  estate.  This  clause  is  found  in  most  wills,  and  under  our 
modern  statutes  is  considered  as  nothing  more  than  a  direction 
to  executor  to  do  what  the  law  would  compel  him  to  do  in  any 
event.  It,  therefore,  does  not  charge  the  debts  primarily  upon 
the  real  ©state  to  the  exoneration  of  personalty,  though  if  the 
personalty  is  insufficient,  it  will  operate  to  charge  the  debts 
on  the  realty.^^  A  direction  to  mortgage  realty  to  meet  the 
debts  thereon  is  held  to  authorize  a  mortgage  only  to  pay  off 
liens  on  such  realty.'^-  Even  where  testator  charges  certain 
realty  with  the  payment  of  his  debts  it  is  held  not  to  make  the 
realty  the  primary  fund  for  their  payment  or  to  exonerate  the 
personalty,  unless  the  will  further  shows  his  intention  so  to 
do-^^  It  is  held  contrary  to  this  view,  that  where  the  debts  are 

90  Fargo  v.  Squiers,  154  N.  Y.  In  re  Bate,  L.  R.  43  Ch.  Div.  600. 
250.  This  case  was  disapproved  by  In  re 

91  Ames  V.  Holderbaum,  44  Fed.  Salt,  1895,  2  Ch.  203;  13  Rep.  499, 
224  (To.)  ;  Iowa  Loan  &  Trust  Co.  which  followed  In  re  Stokes,  07  L. 
V.  Holderbaum,  86  Jo.  1;  52  N.  W.  T.  (N.  S.),  223.  While  these  cases 
550 ;  Morse  v.  Hayden,  82  Me.  227 ;  are  distinguishable  on  other  grounds 
Hamilton  v.  Smith,  110  N.  Y.  159;  they  seem  in  conflict  upon  this  par- 
In  re  Power,   124  N.  Y.  361 ;  In  re  ticular    point. 

Bingham,  127  N.  Y.  296;  In  re  City  92  Iowa   Loan   &   Trust    Company 

of  Rochester,  110  N.  Y.   159;   Clift  v.  Holderbaum,  86  lo.  1;    52  N.  W. 

V.   Moses,   116  N.   Y.   144;    Brill  v.  550. 

Wright,  112  N.  Y.  129;  Cunning-  93  Suydam  v.  Voorhees  (X.  J.). 
ham  V.  Parker,  146  N.  Y^  29 :  Mc-  43  Atl.  4 ;  Higbie  v.  Morris,  53  N.  J. 
Glaughlin  v.  McGlaughlin,  43  W.  Eq.  173;  Slack  v.  Emery,  3  Stew. 
Va.  226.  A  somewhat  similar  view  Eq.  (N.  J.),  458;  Whitehead  v.  Gib- 
was  expressed  in  the  English  case,  bens^  2  Stock,  230   (IST.  J.). 


LAW    OF    WILLS. 


907 


charged  upon  the  realty,  the  personalty  is  exonerated  to  that 
extent,  and  a  legatee  is  entitled  to  be  subrogated  to  the  rights 
of  the  creditor  against  the  realty  to  the  extent  to  which  the 
personalty  was  used  for  the  debts.^^  A  gift  of  property  by  a 
residuary  clause,  after  specific  legacies  and  devises  have  been 
given,  charges  the  property  thus  given  with  the  payment  of 
debts  in  case  the  personalty  is  not  sufficient.*^"  So  where  testa- 
tor gives  his  interest  in  a  certain  business  to  bo  determined  by 
winding  up  the  business  and  ascertaining  the  proceeds,  the 
debts  incurred  by  testator  in  such  business  are  to  be  charged 
first  against  the  business  and  deducted  from  the  property  thus 
given,  and  the  beneficiaries  can  not  insist  that  these  debts  be 
paid  first  out  of  his  general  estate.^*^  A  peremptory  direction 
to  executor  to  pay  the  debts  of  testator  out  of  the  real  or  per- 
sonal estate  is  regarded  as  a  trust,  the  execution  of  which  can 
be  specifically  enforced  at  the  instance  of  the  creditors.^^  A 
discretionary  power,  however,  to  use  the  proceeds  of  real 
estate,^^  or  life  insurance,*^^  in  the  payment  of  such  debts  as 
executor  might  see  fit  to  pay  in  this  way,  does  not  create  a  trust 
for  the  benefit  of  the  creditors  and  can  not  be  enforced  by  them. 

94 /»  re  Salt  (1895),  2  Ch.  203;  my  just  debts  and  funeral  expenses" 
13  Rep.  499,  following  In  re  Stokes.  to  the  trustee  in  trust  for  testator's 
67  L.  T.  (X.  S.),  223,  and  refusing  children.  It  was  held  that  the  en- 
to  follow  In  re  Bate,  43  Ch.  Div.  tire  residue,  including  that  part 
goo.  given  to  testator's  wife,  was  equal- 
as  7»  re  Bawden  (1894),  1  Ch.  ly  liable  for  the  debts  and  expenses 
693;  Turner  v.  Laird,  68  Conn.  198:  of  administration.  Stevens  v.  Un- 
Mulligan's  Estate,  157  Pa.  St.  98;  derhill,  —  (N.  H.)  (1883);  36  Atl. 
Thompson's    Estate,     182     Pa.     St.  370. 

340.       This     is     especially     evident  96  Froelich    v,    Froelich    Trading 

where  the  testator  devised  the  res-  Co.  120  N.  C.  39. 

idue   remaining   after   the   payment  9T  Morse   v.    Hackensack    Savings 

of  his   debts   and   funeral   expenses.  Bank,  47  N.  J.  Eq.  279;  12  L.  R.  A. 

Turner  v.  Laird,  68  Conn.  198.   And  62;    Suydam   v.   Voorhees    (N.   J.), 

this  rule  has  been  applied  where  tes-  43  Atl.  4. 

tator  devised  to  his  wife  "one-third  »«  In  re  Head,  L.  R.  45  Ch.  Div. 

part  of   the  residue  and  remainder  310. 

of  all  my  estate"  and  gave  "the  re-  99  Woods  v.  Woods,  99  Tenn.  50. 
mainder   of   my   estate   after   of  all 


908  LAW    OF    WJLLS. 

§765.     Payment  of  liens  out  of  personalty. 

The  rule  that  testator's  debts  are  primarily  payable  out  of 
his  personalty  applies  not  only  to  his  general  debts  but  to  such 
debts  as  have  become  liens  upon  specified  property  of  testator, 
whether  real  or  personal.  Unless  the  contrary  appears  in  his 
will  these  debts  are  payable  primarily  out  of  his  personal 
estate  not  specifically  bequeathed.^  °"  The  omission  of  mort- 
gagees to  present  their  claims  to  the  executor  does  not  destroy 
the  right  of  the  devisee  of  mortgaged  property  to  have  the  debt 
paid  out  of  the  personalty.^ °^  In  some  jurisdictions  certain 
judgments  are  by  statute  payable  primarily  out  of  the 
realty.^  "^  Personalty  disposed  of  by  residuary  clause  may  be 
applied  to  the  payment  of  testator's  mortgage  indebted- 
ness.^*'^ The  opinion  has  been  expressed  in  some  courts  that  a 
pecuniary  legacy  can  not  be  defeated  or  abated  by  the  appro- 
priation of  the  personalty  to  the  pa^nnent  of  the  mortgage  debt 
in  the  absence  of  any  specific  direction  to  that  affect.^ ''^  Per- 
sonalty specifically  bequeathed  can  not  be  applied  to  the  pay- 
ment of  a  mortgage  debt,  since  testator's  evident  intention  is  to 
benefit  the  legatee  by  the  specific  gift  at  all  events.^ ''^ 

itfo  Turner    v.    Laird,    68     Conn.  the    mortgagee.      Dean    v.    Rounds, 

198;    Bassett  v.   Rogers,   162   Mass.  18  R.  I.  436. 

47;  Hale  v.  St.  Paul,  54  Minn.  421;  w*  Howel    v.    Price,    1    P.    Wms. 

Higbie  V.  Morris,  53  N.  J.  Eq.  173;  291;    O'Neil    v.    Mead,    1    P.    Wms. 

Slack  V.   Emery,   3   Stew.   Eq.   458;  693;    Serle  v.St.  Eloy,  2  P.Wms.386; 

McLenahan  v.  McLenahan,   3  C.   E.  Bickliam   v.    Cruttwell,    3   Mylne   & 

Green,  101;  Keene  v.  Munn,  1  C.  E.  Cr.  763;  Hawes  v.  Warner,  2  Vern. 

Greene,  398;  In  re  Riegelman's  Es-  477;    Wythe  v.  Henniker,  2  Myl.  & 

tate,    174    Pa.    St.    476;    Gould    v.  K.    635;    Selby    v.    Selby,    4    Russ. 

Winthrop,  5  R.  I.  319.  336;  Harris  v.  Dodge,  72  Md.  186- 

101  Turner  v.  Laird,  68  Conn.  198.  Gould  v.  Winthrop,  5  R.  I.  319. 

102 /n  re  Anthony    (1892),   1   Ch.  io5  Johnson  v.  Child,  4  Hare,  87; 

450  (a  judgment  in  elegit).  In    re   Butler    (1894),    3    Ch.    250; 

103  Dean  v.  Rounds,  18  R.  I.  436.  Cost's  Succession,  43  La.  Ann.  144; 

And    the    residuary    legatee,  whose  Thomas  v.  Thomas,  2  C.   E.  Green, 

legacies    have    been    diminished    by  356 ;  Tucker  v.  Lungren,  12  O.  C.  C. 

an  appropriation  of  the  personalty  622;    1   0.  C.  C.  Dec.  577;  Glass  v. 

to  payment  of  such  mortgage  debt,  Dunn,   17   0.   St.  413. 
can  be  subrogated  to  the  rights  of 


LAW    OF    WILLS.  909 

§766.     Where  liens  are  not  payable  out  of  personalty. — Gifts 
cum  onere. 

Where  the  property  devised  was  subject  to  a  mortgage,  or  to 
other  incumbrance,  which  was  not  created  by  testator,  and  for 
which  he  had,  not  become  personally  liable,  and  which  there- 
fore is  not  his  debt,  it  is  held,  in  the  absence  of  any  express 
direction  in  his  will,  that  such  debt  is  not  to  be  paid  out  of  the 
j^ersonalty,  but  that  the  devisee  takes  the  property  cum 
onere}^^  WLere  the  incumbrance  was  not  created  by  testator, 
and  he  was  not  originally  liable  for  the  debt,  the  fact  that  he 
has  covenanted  with  his  vendor  at  the  time  he  purchased  such 
property,  to  pay  off  such  incumbrance,  does  not  make  such  debt 
payable  primarily  out  of  his  personal  estate  in  jurisdictions 
where  such  a  covenant  does  not  make  him  personally  liable  to 
the  original  mortgagee.-^ ^"  Where  the  incumbrance  was  not 
created  by  testator,  a  devise  of  the  incumbered  property  "out- 
right" does  not  show  testator's  intention  to  devise  it  free  from 
the  mortgage.-^ ^**  Where  the  lien  is  not  created  by  testator  he 
may,  nevertheless,  direct  its  payment  out  of  the  personalty. 
This  may  be  done  by  express  direction,  or  by  a  general  scheme 
of  disposition  inconsistent  with  the  theory  that  the  devisee 
must  discharge  the  lien.^*^^ 

Where  testator  expressly  devises  his  property,  subject  to  the 
incumbrances  thereon,  such  incumbrances  are  not  primarily 
payable  out  of  the  personalty.^  ^*^  The  intention  to  devise  cer- 
tain property  cum  onere  may  be  implied  from  the  general  pro- 

losCarlisle    v.    Green     (Ky.),    19  los  Creesy    v.    Willis,     159    Mass. 

S.   W.   925;    14   Ky.   Law.   R.    37.3;  249. 

Hewes  v.  Dehon,  3  Gray,  205 ;    An-  io9  Cumberland   v.    Codrington,    3 

drews  v.  Bishop,  5  Allen,  490;  Cree-  Johns.     Gas.     229;      Thompson     v. 

sy  V.  Wills,  159  Mass.  249.  Thompson.   4   O.    S.    333.      A   direc- 

107  Tweddell   v.   Tweddell,   2   Bro.  tion  in  testator's  will  that  his  just 

C.  C.  101 ;  Billinghurst  v.  Walker,  2  debts  be  paid  out  of  his  personalty 

Bro.  C.  C.  604;   Butler  v.  Butler.  5  may    include    liens    not    created   by 

Ves.    534;     Creesy    v.    Willis,     159  testator.      Thompson    v.    Thompson, 

Mass.  249 ;    McLenahan  v.  McLena-  4  0.  S.  333. 

han,  3  C.  E.  Green,  101 ;    Mount  v.  no  Harris  v.  Dodge,  72  Md.  186. 
Van   Ness,   6    Stew.   —   262;    Cum- 
berland V.  Codington,  3  Johns.  Ch. 
(N.   Y.)    229. 


910  LAW    OF    WILLS. 

visions  of  the  will.  Thus  a  gift  of  certain  legacies,  followed 
by  a  devise  of  a  farm  upon  which  there  was  a  purchase  money 
lien  to  others,  which  purchase  money  lien  was  so  large  that  its 
payment  would  exhaust  the  personal  estate  and  leave  nothin"- 
for  the  legacies,  it  was  held  to  show  testator's  intention  to  de- 
vise the  land  subject  to  the  purchase  money  lien,^^^ 

iiiHedger  v.  Judy,  —  (Ky.)  — :  abated   in  -order   to   pay    mortgage 

26    S.    W.    586.       (While   this    case  debts,    the    court    decided    the    case 

might   be   explained   on   the   theory  upon  the  reasoning  indicated  in  the 

that  pecuniary  legacies  can  not  be  text.) 


LAW    OF     WILLS.  «^11 


CHAPTER  XXXVI. 

CLASSES   OF   DEVISES    AND   LEGACIES. 

§767.     Classes  of  devises  and  legacies. — General  legacies. 

In  determining  questions  as  to  priority  of  payment  of  de- 
vises and  legacies,  three  classes  of  devises  and  legacies  have 
been  established :  general,  specific  and  demonstrative.  A  gene- 
ral legacy  or  devise  is  one  which  may  be  satisfied  by  any  part 
of  testator's  estate,  corresponding  either  in  value  or  general  de- 
scription to  the  provisions  of  the  will.^  The  characteristic  of 
the  general  legacy  or  devise  is  that  it  does  no,t  attempt  to  dis- 
pose of  specific  pieces  of  property.  Any  pecuniary  legacy, 
which,  from  the  terms  of  the  will,  is  payable  generally  from 
testator's  estate,  is  a  general  legacy.^  A  bequest  of  "all  mon- 
eys or  legacies  coming  to  me  from  any  source"  is  said  not  to  be 
a  specific  legacy.^  A  bequest  of  money  due  the  testatrix  from 
the  estate  of  her  deceased  husband,  subject  to  payment  of  cer- 
tain other  legacies,  was  held  to  be  a  general  and  not  a  specific 
legacy.^      A  bequest  of  all  testator's  property  except  certain 

1  Kelly    V.    Richardson,    100    Ala.  coming  to  me  from"  A  was  said  to 
.58  4;  Dean  v.  Rounds,  IS  R.  I.  43G.  be  a  specific  and  not  a  general  leg- 

2  Kelly    V.    Richardson,    100    Ala.  acy.)       Derby    v.    Derby,    4    R.    I. 
584;    Oolder    v.    Chandler,    87    Me.  414. 

6.3;     Huffhes    v.    Hughes,    91    Wis.  *  Littig    v.    Hance,    81    Md.    410. 

J 3^          '  (In   this  case  the  court  laid  down 

3  Dean  v.   Rounds,    18   R.   I.   430.  the  general  proposition  that  "when 
(A    o-ift,    however,    of    the   "moneys  a  fund  is  given  subject  to  debts  or 


912 


LAW    OF    WILLS. 


specified  articles  is  a  general  bequest.^  In  case  of  doubt  of  tes- 
tator's intention,  the  courts  always  presume  that  he  intended 
to  give  a  general  legacy  instead  of  a  specific  one.^  Thus,  cer- 
tain legacies  which  aggregate  in  amount  the  principal  of  a  fund 
given  by  testator  in  trust  for  other  legatees,  and  which  are  pay- 
able on  the  decease  of  such  other  legatees,  are  held  to  be  gen- 
eral legacies,  there  being  no  direction  that  they  be  paid  out  of 
such  trust  fundJ 

§768.     Specific  legacies. 

A  specific  legacy  or  devise  is  a  gift  of  a  particular,  specified, 
and  determined  piece  of  property  as  distinguished  from  a  gen- 
eral gift.^  It  differs  from  a  general  legacy  in  that  it  is  not  in- 
tended by  testator  to  be  paid  out  of  his  estate  generally,  but  is 
to  be  paid  solely  by  delivering  to  the  beneficiary  the  specific 
thing   given  by  will.^       A  specific  legacy  is    given  by  words 


subject  to  other  legacies,  the  gift 
of  the  residue  is  not  specific,"  cit- 
ing Harley  v.  Moon,  1  Dr.  Sm. 
G23;  Baker  v.  Farmer,  L.  Rep.  3 
Ch.  App.  537.  The  court  further 
indicated  in  the  following  language 
a  distinction  which  runs  through 
many  cases :  "There  is  a  broad 
distinction  between  the  gift  of  a 
debt  as  a  debt,  and  the  sum  of 
money  produced  when  the  debt  has 
been  recovered  and  has  ceased  to  be 
a  debt.  In  the  one  instance  the 
legacy  is  specific,  and  the  collec- 
tion of  the  debt  in  the  testator's 
lifetime  will  adeem  the  legacy.  On 
the  other  hand,  the  gift  extends  to 
and  includes  the  fund  in  the  altered 
state,  because,  being  a  gift  of  the 
fund,  the  thing  given  will  pass 
though  it  be  not  in  the  precise 
state  that  it  was  when  the  will 
was  executed.") 

5  Kelly   V.    Richardson,    100    Ala. 
584. 


eDryden  v.  Owing,  49  Md.  356; 
Littig  V.  Hance,  81  Md.  41G;  Briggs 
V.  Hosford,  22  Rick.  (Mass.)  288; 
Wallace  v.  Wallace,  23  N.  H.  149; 
Gilbreath  v.  Winter,  10  Ohio  64; 
Dean  v.  Rounds,  18  R.  I.  436. 

TTeel  v.  Hilton,  21  R.  I.  (Part 
2)    227. 

sin  re  Xottage  (1895),  2  Ch. 
657 ;  ShaflFer's  Succession,  50  La. 
Ann.  601 ;  Byrne  v.  Hume,  86  Mich. 
546;  Wheeler  v.  Wood,  104  Mich. 
414;  Page  v.  Eldredge  Public  Li- 
brary Association  (N.  H.)  (1899), 
45  Atl.  411:  Moore  v.  Moore,  50 
K  J.  Eq.  554. 

9  "A  specific  legacy  is  a  particu- 
lar and  specified  thing  singled  out, 
or  a  particular  fund,  and  if  this 
fund  fail,  or  the  specific  thing  be- 
queathed is  not  in  existence  to  be 
carried  over  to  the  legatee,  the  leg- 
acy can  not  be  paid  out  of  the  as- 
sets of  the  estate."  Byrne  v.  Hume^ 
86  Mich.  546. 


LAW    OF     WILLS. 


913 


wliich  particularly  describe  the  property  which  testator  gives 
to  the  beneficiary.  Thus,  a  gift  of  testator's  property  invested 
in  his  mercantile  business  is  a  specific  gift.-^*^  So  a  gift  of  the 
horses,  farming  implements,  etc.,  upon  a  given  plantation,  is  a 
specific  bequest.^  ^  So  a  devise  of  land  owned  by  testator  at 
the  date  of  the  will  is  a  specific  devise.-^^  Money  may  be  the 
subject  of  a  specific  legacy.  A  gift  of  money  deposited  at  a 
certain  named  bank  is  a  specific  legacy.-^ ^  A  gift  of  a  certain 
sum  out  of  a  certain  described  deposit  has  been  held  to  be  a 
specific  legacy.-^  ^  So  a  gift  to  the  beneficiary  of  a  debt  specif- 
ically described  by  indicating  the  debtor  is  a  specific  bc- 
quest.-^^  So  a  gift  of  a  debt,  secured  by  a  mortgage,  the  execu- 
tor being  directed  to  assign  the  mortgage  to  the  legatee,  is  a 
specific  bequest.-^  *^  And  a  gift  of  a  certain  amount  to  be  paid 
by  allowing  the  legatee  to  select  such  amount  out  of  a  specified 
number  of  bonds  and  mortgages  held  by  testator's  executors 
was  treated  as  a  specific  gift.^^  A  gift  of  certain  encumbered 
realty,  with  a  direction  that  the  executors  pay  off  the  encum- 
brances thereon,  is  a  specific  devise  of  such  realty  free  from  all 
encumbrances.-^^  A  specific  legacy  may  be  a  gift  of  property 
to  be  afterguards  acquired,  if  described  with  sufficient  particu- 
larity.^^ 

10  Kelly  V.  Richardson,  100  Ala.  i6  Wheeler  v.  Wood,  104  Mich. 
584.  414.      (The  will  provided:    "I  give 

11  McFadden  v.  Heffley,  28  S.  C.  and  bequeath"  to  A  "the  sum  of 
317;   13  Am.  State  Rep.  675.  $400,  the  said  $400   to  be  paid  by 

12  Kelley  v.  Richardson,  100  Ala.  my  executor  assigning  and  trans- 
584.  f erring  to   the   said    (A)    a   certain 

13  Barber  v.  Davidson,  73  111.  App.  real  estate  mortgage,"  describing 
441;  Prendergast  V.  Walsh  (N.  J.).  it  by  the  amount,  the  debtor  and 
42  Atl.  1049;  Towle  v.  Swasey,  100  the  land  mortgaged.) 

Mass.   100;    Crawford  v.  McCarthy,  it  Blundell   v.    Pope    (N".   J.),    21 

159  N.  Y.  514.  Atl.    4.50).      (And    being    a    specific 

1*  Crawford  v.  McCarthy,   159  X.  gift  it  carried  with  it  interest  from 

Y.    514.  testator's  death.) 

15  Sinnott    v.   Kenaday,   14    App.  is  Porter  v.  Howe,  173  Mass.  521. 

D.  C.  1 ;  Gelbaeh  v.  Shively,  G7  Md.  According  such  encumbrances  must 

489;   Tomlinson  v.  Bury,  145  Mass.  be  paid  in  full  even   if  the  general 

346;  Gilbreath  v.  Winter,  10  Ohio.  legacies  must  abate  or  fail. 

64;    Derby   v.   Derby,   4   R.   I.    414;  i9  Kelly   v.   Richardson,    100   Ala. 

Gardner  v.  Printup,  2  Barb.  ( S.  C. ) ,  584  ;    Shaffer's    Succession,    50    La. 

83.  Ann.   601. 


914  LAW    OF     WILLS. 

§769.     Gifts  of  stocks,  bonds  and  other  securities. 

When  a  testator,  by  will,  disposes  of  a  certain  number  of 
bonds  and  stocks,  or  bonds  and  stocks  of  a  certain  value,  it  is 
often  very  difficult  to  determine  whether  the  gift  is  general  or 
specific ;  and  there  is  some  difference  of  judicial  opinion  in 
particular  cases.  The  general  principle  which  controls  in  this 
case  is  that,  if  it  appears  from  the  entire  will  that  testator  in- 
tended to  pass  particular,  designated  bonds  or  stocks,  that  the 
gift  is  specific ;  while,  if  the  will  can  be  complied  with  by  giv- 
ing any  bonds  or  stocks  of  the  kind,  value,  and  amount  named, 
the  gift  is  a  general  one.  Thus,  a  gift  of  a  certain  amount  of 
money  in  certain  named  securities,  not  identifying  them,  is  a 
general  gift,  and  not  a  specific  one,  though  testator  had  exactly 
that  amount  at  his  death.^*^  A  gift  of  a  certain  value  of 
securities,  to  be  selected  by  executors  from  his  estate  generally, 
is  a  general  and  not  a  specific  gift.^^  A  gift  of  a  certain  sum, 
"either  in  stock  or  money,"  is,  of  course,  a  general  gift.^^  But 
where  testator  gives  stocks,  bonds,  or  other  securities  in  such 
way  as  to  show  that  he  gives  specific  bonds  or  specific  shares  of 
stock  or  particular  securities,  the  gift  is  regarded  as  a  specific 
and  not  a  general  one.^^  Thus,  where  testator  gives  a  specified 
number  of  shares  of  stock  of  a  certain  kind  to  one  beneficiary, 
and  another  specified  number  to  another,  the  two  together 
being  exactly  equal  to  the  amount  of  stock  owned  by  testator 
when  he  made  his  will,  the  gift  is  treated  as  a  specific  one  es- 
pecially, as  a  subsequent  clause,  he  gives  "balance  of  my 
stock,"  that  is,  the  rest  of  his  stock  of  other  kinds,  to  other 

20  Evans   v.    Hunter,   86    la.    413.       of  the  sum  named  and  not  the'  face 

21  Blundell  v.  Pope  (N.  J.)  ,  21  value  where  the  stocks  are  above 
Atl.  450;   Booth  v.  Baptist  Church,       par.) 

120  N.  Y.  21,5.     But  we  have  seen  2s /^    re   Xottage    (1895),    2    Ch. 

that  where  the  beneficiary  is  to  se-  657;    In   re   Pratt    (1894),     1     Ch. 

lect  the  securities  from  a  specified  491;  Douglass  v.  Douglass,  13  App. 

number,  the  gift  is  treated  as  spe-  D.   C.  21;     Sinnott  v.   Kenaday,   14 

cific.     Blundell  v.  Pope,  —   ( N.  J. )  App.    D.    C.    1 ;    Unitarian    Society 

— ,  21  Atl.  456.  V.  Tufts,  151  Mnss.  76:   7  L.  R.  A. 

22  Graham  v.  De  Yampert,  106  390;  Yerkes's  Estate,  22  Pa.  Co. 
Ala.  279.  (Being  a  general  gift,  if  263;  8  Pa.  Co.  263;  8  Pa.  Dist.  Rep. 
beneficiary  elects  to  take  the  stocks,  37  &  83;  McFadden  v.  Heffley.  28  S. 
he  can  take  only  the  actual   value  C.  317;    13  Am.  St.  Rep.  675. 


LAW    OF     WILLS. 


915 


beneficiaries.^'*  A  gift  of  the  dividends  of  a  specified  block  of 
stock,  being  considered  in  law  as  a  gift  of  the  stock  itself,  is  a 
specific  bequest.^^ 

Where  testator's  intention  to  make  a  specific  gift  is  clear,  a 
slight  misdescription  of  the  security  to  be  given  does  not  pre- 
sent the  gift  from  being  a  specific  one.^'^  In  a  case  which  is  a 
departure  from  the  normal,  a  gift  to  legatees  of  certain  num- 
ber of  shares  of  a  particular  kind  of  stock  "now  owned  by  me 
and  standing  in  my  name"  on  the  corporation  stock  books, 
amounted  in  all  to  2200  shares;  at  the  date  of  the  will  testator 
owned  over  3000  shares;  at  the  time  of  his  death  he  o^vned 
only  200  shares.  The  court  held  that  this  was  a  general  and 
not  a  specific  legacy.  This  result  was  to  some  extent  aided  by 
a  statute  providing  that  a  will  should  be  construed  as  if  it  had 
been  made  immediately  prior  to  testator's  death,  imless  his  in- 
tention clearly  appears  otherwise.  The  legacies  were,  there- 
fore, treated  as  general  pecuniary  legacies.^'^  Where  testator 
directs  that  a  certain  sum  of  money  derived  from  his  estate 
generally  be  invested  in  a  certain  manner,  this  is  held  to  be  a 
general,  and  not  a  specific  legacy,  the  fund  thus  invested  being 
raised  from  testator's  e-eneral  estate.-^ 


&"- 


§770.     Demonstrative  legacies. 

A  demonstrative  legacy  is  one  which  is  general  in  its  nature, 
but  which  is  made  payable  out  of  certain  specified  property 
either  real  or  personal. ^^     A  gift  of  a  certain  amount  "to  be 

24  Unitarian  Society  v.  Tufts,  151  McFadden  v.  Heffley,  28  S.  C.  317; 
Mass.  76;   7  L.  R.  A.  390.  13  Am.  State  Rep.  675. 

25  McFadden  v.  Heffley,  28  S.  C.  29  Ives  v.  Canby,  48  Fed.  718; 
317;  13  Am.  St.  Rep.  675.  Hibler    v.    Hibler,    104    Mich.    274. 

26  7re  re  Nottage  (1895),  2  Ch.  Johnson  v.  Conover,  54  N.  J.  Eq. 
657  (debentures  miscalled  deben-  333;  In  re  Hodgman.  140  N.  Y. 
ture  stock  or  shares)  ;   Tn  re  Pratt  421;  Hammer's  Estate.  158  Pa.  St. 

(1894),   1   Ch.  491    (mistake  in  de-  6.32;   Glass  v.  Dunn.   17  O.  S.  413; 

scribing  the  rate  of  interest  which  Lake  v.  Copeland,  82  Tex.  464.     In 

the  securities  bore).  Byrne  v.  Hume,  86  Mich.  546.  a  de 

27]Vfehoney  v.  Holt,  19  R.  I.  660  monstrative  legacy  was   said  to   be 

(1896)  ;  36  Atl.  1.  "a  pecuniary  legacy,  the  particular 

28  Moore  v.  Moore,   50  N.  J.  Eq.  fund  being  pointed  out  from  which 

554;  /n  re  Hodgman,  140  N.  Y.  421;  it   is  to   be   paid."     This  definition 


916 


LAW     OF     WILLS. 


paid  out  of  my  personal  property  on  hand  after  the  death  of 
my  said  wife,"  is  a  demonstrative  legacy  ;^*^  so  is  a  gift  of  "the 
sum  of  $8,000  invested  in  stocks"  ;^^  and  a  gift  of  a  certain 
sum  "which  may  be  invested  in  bank  stock"  has  been  held 
demonstrative."^" 

A  demonstrative  legacy  has  been  held  to  be  created  by  a  gift 
which,  in  its  terms,  is  apparently  specific  where  it  is  evidently 
given  as  a  means  of  carrying  out  testator's  intention  of  divid- 
ing his  estate  equal ly.^^  Demonstrative  legacies  thus  combine 
most  of  the  advantages  of  both  general  and  specific  legacies. 
If  the  property  out  of  which  it  is  made  payable  is  in  existence, 
the  demonstrative  legacy  is  payable  out  of  such  fund  before 
other  legacies.^'*  If  the  property  out  of  which  it  is  payable  is 
not  in  existence,  the  demonstrative  legacy  is  payable  out  of 
testator's  property  generally.^^ 


is  open  to  criticism  in  as  much  as  a 
demonstrative  legacy  may  be  pay- 
able out  of  property  other  than  the 
fund,  and  it  seems  need  not  nec- 
essarily be  in  the  form  of  a  pe- 
cuniary legacy.) 

Hence,  if  such  gift  is  paid  by 
delivering  part  of  the  stock,  it  does 
not  carry  with  it  interest  or  the 
dividends.  Giddings  v.  Seward,  16 
N.  Y.  365;  Newton  v.  Stanley,  28 
N.  Y.  61.  Hence  a  provision  that 
an  annuity  should  be  paid  out  of 
certain  tolls  which  were  bequeathed 
in  trust  is  not  a  demonstrative 
legacy,  but  the  creation  of  a  trust ; 
and  if  the  proceeds  of  the  tolls  are 
insufficient  to  pay  the  annuity,  re- 
sort can  not  be  had  to  the  gen- 
eral estate  of  testator.  Morris  v. 
Harris,  19  O.  S.  15. 

soHibler  v.  Hibler,  104  Mich. 
274. 

31  Johnson  v.  Conover,  54  N.  J. 
Eq.  333. 


32  In  re  Hodgman,  140  N.  Y.  421. 
(This  is  really  a  general  legacy. 
The  real  point  at  issue  was  whether 
the  gift  was  specific  on  the  one 
hand,  in  which  case  it  would  car- 
ry interest,  or  general  or  demonstra- 
tive on  the  other,  in  either  of  which 
cases  it  would  not.) 

33  Hammer's  Estate,  158  Pa.  St. 
632  ;  Lake  v.  Copeland,  82  Tex.  464. 
( The  result  is  reached  in  these  liaseS 
by  holding  that  from  the  whole 
will  it  is  testator's  intention  that 
the  gift  shall  be  paid,  in  any  event, 
even  if  it  is  necessary  to  pay  it  out 
of  the  general  estate,  and  that  he 
did  not  intend  that  the  gift  should 
depend  upon  continued  existence  cf 
the  property  out  of  which  it  is  to 
be  paid.) 

3*  Dunford  v.  .Jackson,  —  Va. — 
(1896)  ;  22  S.  E.  853. 

35  See  cases  cited  in  this  sec- 
tion. 


LAW     OF     WILLS. 


917 


CHAPTER   XXXVII. 

ABATEMENT,  ADEMPTION.  ADVANCEMENTS   AND 
CONTRIBUTION. 


1— ABATEMENT. 


§771.     Where  testator  directs  order  of  abatement. 

The  debts  of  a  testator  have,  of  course,  a  priority  of  pay- 
ment over  legacies  given  by  him.  If,  after  payment  of  debts, 
there  is  not  sufficient  property  to  pay  all  the  legacies  which  he 
has  given  by  will,  it  is  evident  that  some  or  all  must  fail  in 
whole  or  in  part  by  reason  of  such  deficiency  in  his  estate. 
This  failure  is  known  as  abatement.  The  question  presented 
in  such  cases  for  determination  is  whether  the  legacies  shall 
abate  pro  rata,  or  whether  certain  ones  shall  be  paid  in  full  and 
others  either  completely  defeated  or  disproportionately  re- 
dnced  in  order  to  pay  such  others  in  full. 

If  testator  in  his  will  indicates  that  certain  legacies  are  to 
be  given  priority  over  others  in  case  of  a  deficiency  in  the  es- 
tate, his  wishes  will  be  enforced.^     Thus,  a  direction  that  a  cer- 

1  Chester  County  Hospital  v.  Hay-  398  ;     Eames   v.   Protestant   Episco- 

den,  83  ]\Id.   104;   Towle  v.  Swnsey,  pal  Church,  G8  N.  H.  203:    Moore  v. 

106  Mass.  100;    Richardson  v.  Hall,  Moore,   50  N.  J.  Eq.  554;     Bright's 

124    Mass.    228;     Weston    v.    Mass.  Appeal,   100  Pa.   St.   602;     Spencer, 

General  Hospital,  169  Mass.  76;  Mc-  Petitioner,    16    R.    I.    25;     Lee    v. 

Lean  v.  Robertson,   126  Mass.  537  ;  Smith,  84  Va.  289. 
Heath    v.    McLaughlin,    115    N.    C. 


918  LAW     OF    WILLS. 

tain  legacy  shall  be  first  paid,  and  then,  after  such  legacy  is 
paid,  another  legacy  shall  be  paid  out  of  his  estate,  such  an 
expression  is  ordinarily  held  to  give  the  first  legacy  a  priority 
of  payment  over  the  subsequent  ones.^  So  testator  may  provide 
in  his  will  that  certain  specified  property  shall  not  be  applied 
to  the  payment  of  his  debts  until  the  rest  of  his  estate  is  con- 
sumed in  their  payment.^ 

Where  testator's  intention  is  clear  in  his  will,  he  may  even 
make  a  legacy,  in  its  nature  residuary,  a  preferred  legacy  over 
pecuniary  ones.  Thus,  where  testator  bequeathed  all  his  prop- 
erty to  his  wife,  directing  her  to  pay  certain  legacies  out  of 
such  property,  but  providing  that  under  no  other  provisions  of 
the  will  her  share  shall  be  less  than  $7,000,  which  was  to  in- 
clude two  life  insurance  policies  aggregating  $5,000  and  pay- 
able to  her,  it  was  held  that  his  intention  was  clear  that  she 
should  be  a  preferred  legatee  out  of  his  general  estate  to  the 
amount  of  $2,000.'*  So  where  testatrix  directed  that  the  sum 
of  $10,000  be  kept  as  a  fund  for  the  use  and  maintenance  of 
her  father  for  life,  and  at  his  death  "the  whole  amount  of  $10,- 
000"  to  go  to  a  designated  charity,  and  gave  subsequently  two 
general  legacies,  it  was  held  to  be  the  intention  of  testatrix 
that  the  fund  of  $10,000  for  the  support  of  her  father  should 
be  devoted  to  that  purpose,  in  any  event,  and  that  such  legacy 
Avas  to  be  preferred  to  the  other  two.  Hence,  upon  his  death, 
the  fund  was  to  be  paid  in  full  to  the  trust,  even  though  the 
general  legacies  might  be  abated  or  defeated.^  Still,  expres- 
sions in  a  will  which  show  the  order  in  which  the  bequests  are 
made,  or  even  the  order  of  time  in  which  they  are  to  be  paid, 
do  not  of  themselves  show  testator's  intention  to  give  certain 
legacies  a  priority  of  payment  over  others  in  ease  of  insufli- 

2  Shaffer's  Succession,  50  La.  App.  of  testator's  grandson,  and  then  to 
GOl;  Hammond  v.  Hammond,  169  pay  the  "followin.o-  legacies"  was 
Mass  82  (thus  a  gift  of  a  certain  held  to  g've  no  priority  to  the  leg- 
annuity  to  A  and  the  balance  of  the  acy  to  grandson.) 
income,  if  any,  to  B.  gives  A's  leg-  ^  Hammet  v.  Hammet,  38  S.  C. 
acy  a  priority)  ;  Richardson  v.  Bow-  50. 
en,  18  R.  I.  138.     See  Sec.  749.  4  Phillips's  Estate,  18  ]\ront.  311. 

Contra  Lindsay  v.  Waldbrook,  24  ^  Chester  County  Hospital  v.  Hay 

Ont.  App.  604   (   a  direction  to  pay  den,  83  Md.  104. 
a   certain    legacy   for   the   education 


LAW    OF    WILLS.  919 

ciency  of  assets.®  A  legacy  which  is  charged  upon  certain 
property  has,  as  to  such  property,  a  priority  over  general  lega- 
cies.'^ 


§772.     Where  no  direction  in  will. — Residuary  legacies. 

Testator's  will  does  not,  however,  often  contain  provisions 
directing  the  course  in  which  the  legacies  given  shall  abate, 
since  testator  rarely  contemplates  the  possibility  of  his  estate 
failing  to  pay  his  debts  and  legacies  in  full. 

In  the  absence  of  specific  provisions  in  the  will,  the  law 
must  provide  in  what  order  the  different  classes  of  legacies 
shall  abate.  This  result  is  reached  by  general  rules  which  are 
intended  to  express  and  enforce  the  probable  intention  of  the 
average  testator.  It  is  another  of  those  difficult  cases  where 
courts  must  determine  the  intention  of  testator  upon  a  subject 
upon  which  he  never  had  any  intention. 

If  testator's  estate  is  insufficient  to  pay  off  all  his  legacies 
and  devises  in  full  after  paying  his  debts,  the  legacies  given  in 
the  residuary  clauses  abate  first.  ISTo  payment  can  be  made  to 
a  residuary  legatee  until  all  other  legacies  have  been  paid  in 
full.^  Thus,  in  a  gift  of  certain  sums  to  legatees  named, 
with  a  provision  in  case  of  a  deficiency  in  the  funds  avail- 
able for  the  payment  of  such  legacies,  followed  by  a  residuary 
clause,  it  was  held  that  the  rents  collected  from  realty  pending 
its  sale  under  a  power  should  be  paid  to  the  first  legatees  rather 
than  to  the  residuary  legatees.^  A  gift,  after  providing  for 
certain  legacies,  of  "one-sixth  of  the  rest,  residue  and  remain- 
der" of  his  estate,  was  held  to  give  only  what  was  left  after 

6  Porter  v.  Howe,  173  Mass.  521;  Alsop  v.  Bowers,  76  N.  Car.  168; 
Sumner  v.  American  Home  Mission-  Burke  v.  Stiles,  65  N.  H.  163;  In 
ary  Society,  64  N.  H.  321.  re  Hodgman,   140  N.   Y.   421  ;    Fer- 

7  Young  V.  Benton  (N.  H.)  guson's  Appeal,  138  Pa.  St.  208; 
(1900)  ;  46  Atl.  51.  Vance's    Estate,    141    Pa.    St.    201; 

s/nreBawden  (1894) ,  1  Ch.  693;  12  L.  R.  A.  227;  Lyon  v.  Brown 
Warren  v.  Morris,  4  Del.  Ch.  289;  University,  20  R.  I.  53;  rehearing 
Carper  v.  Crowl,  149  111.  465;  Por-  denied,  20  R.  I.  337;  Zentner's  Es- 
ter V.  Howe,  173  Mass.  521 ;  Tom-  tate,  90  \Yis.  236. 
linson  v.  Bury,  145  Mass.  346;  9  Lyon  v.  Brown  University,  20  E. 
Svkes    V.    Van    Bibber.    88    Md.    98;  I.  53 ;  rehearing  denied,  20  R.  L  337. 


920  LAW    OF    WILLS. 

payment  of  the  debts  and  legacies.^  *^  The  reason  underlying 
this  rule  is  that,  as  testator  bequeaths  in  a  residuary  clause 
only  that  jDart  of  his  property  left  after  tlie  pa^anent  of  the  be- 
quests and  devises  previously  given,  his  intention  will  be  best, 
given  effect  by  using  the  residuum  first  in  paying  testator's 
debts.  The  purpose  of  all  these  rules  is  to  approximate  testa- 
tor's intention  as  it  would  probably  express  itself  if  he  had 
been  aware  of  the  actual  relation  of  the  value  of  his  property 
to  the  amount  of  his  debts,  since  it  is  impossible  to  give  literal 
effect  to  testator's  intention.  Where  there  is  no  residuary 
clause,  any  property  which  testator  has  not  disposed  of  by  will 
is  applied  to  the  pa}^nent  of  his  debts  before  any  which  is  spe- 
cifically bequeathed. 

§773.     General  legacies. 

If,  after  appropriating  the  entire  residuum,  testator's  estate 
is  not  sufficient  to  pay  the  other  legacies  in  full,  the  general 
legacies  will  next  abate  pro  rata}^  ''Between  specific  and  gen- 
eral devises  or  legacies,  the  loss  is  to  be  borne  wholly  by  the 
latter."^ ^  Even  though  it  appears  quite  probable  that  testa- 
tor's wishes,  if  expressed,  would  have  been  that  one  or  more  of 
the  general  legacies  should  be  preferred  in  paym-ent  to  others, 
the  rule  that  the  general  legacies  abate  -pro  rata  will  not  be  de- 

10  Zentner's  Estate,  90  Wis.   236.  Mass.  38 ;  Lawton  v.  Fitehburg  Sav- 

11 /m   re   Bate,   L.    R.    43    Ch.    D.  ings  Bank,  160  Mass.  1.54;  Phillip's 

600;    Schweder's    Estate    (1891),    3  Estate,    18    Mont.    311;   Rumsey  v. 

Ch.  44;  /n  re  Staebler,  21  Ont.  App.  Otis,    133   Mo.    8.5;    Hall    v.    Smith, 

266:  Botsford's  Appeal.  33  N.  B.  5.5:  61  N.  H.   144:  Meis  v.  Meis,  —  N. 

Kelly  V.  Richardson,  100  Ala.  584;  J.  Eq.  — ,  1896;  35  Atl.  369:  United 

Duffield  V.  Pike,  71  Conn.  521 ;  Nash  States  Trust  Co.  v.  Black.  146  N.  Y. 

V.  Ober,  2  App.  D.  C.  304 ;  Showalter  1;    Ferguson's   Appeal,   138   Pa.   St. 

V.     Showalter,     38    111.    App.    208;  208;  Duvall's    Estate,    146    Pa.    St. 

Henry  v.   Griffis,   89  To.   543;   Mur-  176;   Myers  v.  Myers.  88  Va.   131; 

ray    v.     Murray    (Ky.),    27    S.    W.  Morris     v.     Garland,     78    Va.    215; 

977;    16    Ky.    L.    R.    332;     Coste's  Broderick  v.   Broderick,   35  W.  Va. 

Succession,  43  La.  App.  144 ;  John-  620 ;   Dunn  v.  Rennick,  40  W.  Va.. 

son  V.   Home    for    Aged    Men,   152  349;  Bradford  v.  McConihay,  15  W. 

Mass.  89;   Richardson  v.  Hall,   124  Va.  732. 

Mass.  228 ;  Farnum  v.  Bascom,  122  12  Johnson  v.  Home  for  Aged  Men, 

Mass.    282 ;    Towle   v.    Swasey,    106  152  Mass.  89. 

Mass.  100;  Babidge  v.  Vittum,  156 


t,AW    OF    WILLS.  ^^■*' 

parted  from,  in  the  absence  of  any  expression  in  the  will  show- 
ing an  intention  to  give  a  preference  to  such  legacies.^^  Even 
where  testator  directs  that  certain  legacies  shall  abate  last,  this 
direction,  while  it  saves  the  specified  legacies,  does  not  change 
the  rule  as  to  the  other  legacies  given  by  will.^^  A  bequest 
given  by  will  of  five  per  cent,  of  so  much  of  testator's  estate  as 
should  be  in  existence  at  the  death  of  his  widow  was  held  to 
have  no  priority  over  pecuniary  legacies.^ ^ 

In  many  individual  cases,  testator  would  no  doubt  have  pro- 
vided that  certain  specific  legacies  should  abate  in  favor  of  cer- 
tain general  ones,  if  his  attention  had  been  called  to  the  subject 
and  he  had  appreciated  its  practical  importance.  To  deter- 
mine in  what  cases  his  intention  existed  would  require  the 
courts  to  enter  upon  the  forbidden  field  of  direct  extrinsic  evi- 
dence of  testator's  intention.  In  avoiding  such  extrinsic  evi- 
dence, the  courts  are  thrown  back  on  the  rule  that  general  lega- 
cies abate  first  as  the  rule  most  probably  conforming  to  testa- 
tor's actual  intention  in  the  majority  of  cases. 

§774.     Demonstrative  legacies. 

A  demonstrative  legacy  is,  of  course,  a  first  charge  upon  the 
fimd  or  property  which  testator  designates  as  to  the  source  of 
payment  of  such  legacy.^^  A  demonstrative  legacy  is  not  de- 
feated, however,  by  the  partial  or  total  failure  of  the  fund  out 
of  which  such  legacy  is  payable,  but  in  such  case  the  deficiency 
is  to  be  made  up  out  of  testator's  personal  estate  not  specif- 
ically bequeathed.^  ^     Thus,  where  testator  directs  that  certain 

13  Schweder's    Estate     (1891),     3  son  v.   Bragg,  21   R.  I.  296;   21   R. 

Ch.  44.      (In  this  case  a  legacy  to  I.   (Part  1),  87. 

testator's  wife   for    her    immediate  i*  Heath  v.  McLaughlin,    115    N. 

needs    was    held    to    abate  pro  rata  C.  398. 

with    other    legacies.)      Duffield    v.  is  Ferguson's  Appeal,  138  Pa.  St. 

Pike,  71  Conn.  521 ;  Babvidge  v.  Vit-  208. 

turn,  156  Mass.  38   (a  legacy  to  tes-  i"  See  Chap.  XXXVI. 

tator's   children   held   to   abate   pro  i^  Ives    v.    Canby,    48    Fed.    718: 

rata  with   lesacies  to  more  distant  GoVler     v.    Chandler.    87    Me.    63.; 

relatives):     Porter    v.    Howe,     173  Byrne  v.  Hume,  86  Mich.  .546 :  Rote 

Mass.     521      (legacies    to    testator's  v.   Warner,    17    0.   C.   C.   842;    Lake 

near  relatives  held  to  abate  pro  rata  v.  Copeland,  82  Tex.  464. 
with  legacies  to  charities):  Nicker-  "The    gift    is    unconditional    and 


922  LAW   or   WILLS. 

real  estate  be  sold  in  no  event  for  less  than  a  certain  sum,  and 
that  out  of  the  proceeds  a  legacy  given  to  another  shall  be  paid, 
such  legacy  was  not  defeated  by  sale  of  the  property  for  less 
than  such  smn,  under  judicial  sale  instituted  by  a  creditor  of 
the  estate.^  ^ 

Where  testator  makes  a  gift  of  certain  legacies  out  of  a  fund 
or  proceeds  of  property,  and  gives  the  remainder  or  residuum 
of  the  fund  or  proceeds  of  such  property,  after  the  sale,  to  a 
designated  beneficiary,  the  question  is  often  presented  for  de- 
termination whether  the  gift,  which  is  in  fonn  a  residuary 
gift,  is  really  such,  or  whether  it  is  a  specific  legacy  like  the 
others.     The  distinction  adopted  by  the  courts  is  as  follows: 

If  the  fund  out  of  which  the  legacies  are  given  is  fixed  and 
ascertained  in  amount,  the  residuary  gift  is  construed  as  in  ef- 
fect a  gift  of  a  certain  part  of  the  original  fund.  Accordingly, 
in  case  of  a  deficit  in  such  fund,  the  legacies  will  abate  pro 
rata}^  On  the  other  hand,  if  the  fund  from  which  the  lega- 
cies are  given  is  not  settled  and  determined  in  amount,  so  that 
the  amount  of  the  residuum  can  not  be  determined,  it  is,  of 
course,  impossible  to  determine  what  fraction  of  the  whole 
fund  testator  intended  to  give  to  the  residuary  beneficiary. 
In  such  cases,  therefore,  a  gift  of  the  residuum  is  treated  in 
the  same  way  as  other  residuary  gifts,  and  a  deficiency  in  u 
fund  must  be  borne  entirely  by  the  residuary  legatee,  the  other 

absolute,  although,   as  is  often  tlie  is  Broderick  v.   Broderick,   35   W. 

case,   he   overestimates   the   sources  Va.   620. 

of  supply  which  were  to  assure  its  is  Page  v.  Leapingwell,  18  Ves. 
payment.  The  source  indicated  Jr.  463;  WalpoJe  v.  Apthorp,  L.  R. 
turning  out  to  be  insufficient,  others  4  Eq.  37.  (This  rule  rests  upon  the 
must  be  taken  to  supply  the  de-  fact  that  the  entire  fund  is  fixed, 
ficiency.  It  is  a  demonstrative  leg-  as  for  instance  .$1,000,  a  fund  of 
aey,  not  lost  because  of  the  non-  a  certain  amount  out  of  such  to  one, 
existence  of  the  property  specially  as,  for  example,  $500,  with  a  gift  of 
pointed  out  as  a  means  of  satis-  the  remainder  to  another,  is  exactly, 
fyipg  it."  in  legal  effect  and  contemplation, 
Moore  v.  Alden,  80  Me.  301,  cit-  the  same  thing  as  a  gift  of  one- 
ing  Smith  v.  Fellows,  131  Mass.  half  of  the!  fund  to  one  and  the 
20;  McLean  v.  Robertson,  126  Mass.  other  half  to  another;  and  accord- 
537;  Potter  v.  Brown,  11  R.  I.  232:  ingly  it  was  treated  in  law  in  ex- 
Wells  V.  Berwick,  L.  R.  17  Ch.  D.  actly  the  same  manner.) 
798. 


LAW    OF    WILLS. 


923 


beneficiaries  being  paid  in  full  if  the  fund  is  sufficient.^^ 
Thus,  a  provision  that  in  event  of  the  death  of  a  certain  legatee 
without  issue  his  legacy  of  $30,000,  and  whatever  else  he 
might  be  entitled  to  under  the  will,  should,  in  such  case,  be 
divided  into  four  bequests  of  $5,000  each,  and  the  residue  to 
another  beneficiary,  shows  that  testator  did  not  intend  to  limit 
his  gift  to  the  fixed  sum  of  $30,000,  but  that  it  was  an  uncer- 
tain sum  which  testator  thought  would  be  in  excess  of  that 
amount.  Accordingly,  when,  after  the  death  of  the  legatee 
without  issue,  it  proved  that  the  estate  of  the  testator  would  not 
be  sufficient  to  pay  the  legacy  of  $30,000,  it  was  held  that  the 
four  legacies  of  $5,000  each  were  to  be  paid  in  full,  and  that 
the  deficit  was  to  be  borne  entirely  by  the  gift  of  the  resi- 
due.2i 

§775.     Specific  legacies. 

Specific  legacies  do  not  abate  until  the  entire  amount  of  the 
general  and  residuary  legacies  has  been  consumed  in  paying 
testator's  debts ;  and  specific  legacies  do  not  abate  in  favor  of 
general  legacies  unless  the  contrary  intention  is  manifested  in 
the  will.-^  Thus,  where  testator  by  will  gives  the  principal 
of  a  designated  mortgage  to  his  children  equally,  it  was  held 
that  such  mortgage  can  not  be  applied  to  the  payment  of  other 


20  Currie  v.  Kimberley,  57  L.  J. 
Ch.  N.  S.  743;  Elwes  v.  Causton,  30 
Beav.  554;  Booth  v.  Alington,  6 
De.  G.  M.  &  G.  613;  Wright  v. 
Weston,  2G  Beav.  429;  Haslewood 
V.  Green,  28  Beav.  1 ;  Miller  v. 
Huddlestone,  L.  R.  6  Eq.  65;  Petre 
V.  Petre,  14  Beav.  197 ;  Harley  v. 
Moon,  1  Drew  &  S.  623 ;  Wilday  v. 
Barnett,  L.  R.  6  Eq.  193;  Re  Har- 
ries, Johns  Ch.  R.  199 ;  Aston  v. 
Wood,  43  L.  J.  Ch.  N.  S.  715;  Cor- 
ballis  V.  Corballis,  9  L.  R.  Ir.  309; 
1)1  re  Tunno,  L.  R.  45  Ch.  Div.  66 ; 
In  re  Carbery,  30  Ont.  Rep.  40; 
Sykes  v.  Van  Bibber,  88  Md.  98;  Van 
Nest  V.  Van  Nest,  43  N.  J.  Eq.  12G ; 
Broderick  v.  Broderick,  35  W.  Va. 
620. 


21  Sykes  v.  Van  Bibber,  88  Md. 
98. 

22  Kelly  V.  Richardson,  100  Ala. 
584;  Woodworth's  Estate,  31  Cal. 
595 ;  HolTecker  v.  Clark,  6  Del.  Ch. 
125 ;  Johnson  v.  Home  for  Aged 
Men,  152  Mass.  89;  Meiss  v.  Meiss, 
—  N.  J.  Eq.  — ;  35  Atl.  369;  Page 
V.  Eldredge  Public  Library  Asso- 
ciation (N.  H.)  (1899),  45  Atl. 
411;  McMahon's  Appeal,  132  Pa.  St. 
175;  Myers  v.  Myers,  88  Va.  131; 
Morris  v.  Garland,  78  Va.  215; 
Dunn  V.  Renick,  40  W.  Va.  349.  (A 
specific  legacy  is  liable  to  ademp- 
tion, but  not  to  abatement.)  Dunn 
V.  Renick,  40  W.  Va.  349 ;  Bradford 
V.  McConnihav,  15  W.  Va.  732. 


924  LAW    OF    WILLS. 

legacies,  or  in  any  way  be  diverted  from  the  named  benefi- 
ciaries, except  for  the  payment  of  testator's  debts.^^  Where 
property  specifically  devised  is  necessarily  sold  to  pay  testa- 
tor's debts,  the  surplus  proceeds  of  the  sale  of  such  property, 
after  payment  of  the  debts,  go  to  specific  beneficiary,  and  can 
not  be  applied  to  general  bequests  and  legacies.^'*  While  spe- 
cific legacies  usually  abate  pro  rata  if  they  abate  at  all,  the  cir- 
cumstances of  the  case  and  the  context  of  the  will  may  show 
that  testator  intended  to  give  one  specific  gift  a  preference 
over  the  other.^^  Thus,  testator  provided  that  his  property 
should  be  subject  to  a  trust  to  support  certain  minors ;  and,  at 
the  time  of  making  his  will,  testator  anticipated  that  he  would 
die  soon.  He  then  had  one  fund  available  at  once ;  the  other, 
available  on  the  death  of  one  having  a  life  interest  in  such 
fund,  who,  by  the  tables  of  mortality,  might  live  twenty  years. 
It  was  held  that  the  trust  was  payable  of  the  first  fund,  though 
testator  had  made  specific  gifts  of  each.^^ 

§776.     Legacies  given  upon  valuable  consideration. 

Where  a  legacy  is  given  upon  a  valuable  consideration  a 
different  rule  applies,  if  abatement  of  legacies  is  necessary. 
The  common  types  of  legacy  upon  consideration  are  legacies 
in  lieu  of  dower^''^  and  legacies  in  satisfaction  of  a  debt  due 
from  testator  to  legatee.-*  In  these  eases  the  legatee,  by  elect- 
ing to  take  under  the  will,  parts  with  a  valuable  right.     It  is 

23McMahon's  Appeal,  132  Pa.  St.  132;   Moore  v.  Alden.  80  Me.   301; 

175.  Towle   V.    Swasey,    106   Mass.    100; 

24Golder  v.  Chandler,  87  Me.  63.  Taylor's    Estate,    175    Pa.    St.    60. 

25  Emery    v.    Batchelder,    78    Me.  But    where    the    widow    claims    a 

233;   Thurber  v.   Battey,   105  Mich.  homestead    by    virtue    of    her    hus- 

718;  Farnum  v..  Bascom,  122  Mass.  band's    will,    it    has    been    held    in 

282;    Boston    Safe    Deposit    Co.    v.  Kentucky  that  as  to  his  creditors, 

Plummer,  142  Mass.  257.     See  See.  she   is   not   a   purchaser    for  value. 

771.  Nichols  V.  Lancaster   (Ky.)    (1896). 

20  Thurber   v.    Battey,    105    Mich.  .32  S.  W.  670. 

718.  28  McLean  v.  Robertson,  126  Mass, 

27  Security    Company    v.    Bryant,  537 :  Richardson  v.  Hall,  124  Mass. 

52    Conn.    311;    Reed    v.    Corrig^n,  228 :  Duncan  v.  Franklin  Township. 

143  111.  402;  Allen  v.  Pray,  12  Me.  43  X.  J.  Eq.  143. 
138:    Hastings    v.    Cli.Tord,    32   Me. 


LAW    OF    WILLS.  ^^5 


probably  testator's  intention  that  the  legacy  indicated  by  will 
as  a  suitable  recompense  for  such  valuable  right  should  be  paid 
in  full,  even  if  other  legacies  are  thereby  defeated.  Accord- 
ingly, it  is  settled  that  general  legacies  given  on  valuable  con- 
sideration have  a  priority  over  other  general  legacies.^^  A 
legacy  to  obtain  masses  for  testator  was  held  to  be  upon  con- 
sideration, and  not  to  abate  pro  rata  with  other  general  lega- 
cies-^*"^  On  the  same  principle,  specific  legacies  on  considera- 
tion should  have  priority  over  other  specific  legacies.=^^  Even 
where  the  will  directed  that  bequests  should  abate  pro  rata  in 
case  of  a  deficiency  of  assets,  it  was  hold  that  such  provision 
did  not  apply  to  a  legacy  given  upon  consideration.^^ 

Whether  a  general  legacy  on  consideration  will  have  prior- 
ity over  a  specific  legacy  is  a  question  upon  which  there  is  a 
divergence  of  authority.  On  principle  a  general  legacy  should 
have  priority  in  such  case,  at  least  if  the  often-repeated  state- 
ment that  such  a  legatee  is  a  purchaser,  for  value  means  what 
it  says ;  and  this  position  has  been  taken  in  some  cases.^^  This 
view  does  not  seem  to  be  uniformly  held,  however.^^ 

§777.     Abatement  of  devises. 

At  common  law  testator's  personalty  was  liable  for  his  debts 
and  legacies ;  and  his  realty  could  not  be  applied  to  the  pay- 
ment of  either  debts  or  legacies  unless  they  were  specifically 
charged  upon  the  realty.  This  rule  has  been  every^vhere 
changed    by  statute  as  to  the  debts  of    a  decedent;  and    his 

29  Burridge  v.  Bradyl,  1  P.  Wms.  si  Taylor's    Estate,    175    Pa.    St. 

log-    Blower  v.  Morret,  2  Ves.  Sr.  60   (abatement  of  devises). 

420 ';     Davenhill    v.    Fletcher.    Amb.  32  McLean  v.  llobertson,  120  Mass. 

244;    Norcott   v.   Gordon,    14     Sim.  537. 

258;    Warren  v.  Morris,  4  Del.  Ch.  "3  Lord    v.    Lord,    23    Conn.    32.  ; 

289;    ISIoore  v.  Alden,  80  Me.   301;  Clayton  v.  Aikin,  38  Ga.  320;  Bor- 

Hastinf^s  V.Clifford,  32  Me.  132;  Al-  den   v.    Jenks,    140    Mass.    562;    .o4 

len  V    Pray,  12  Me.  138;    Towle  v.  Am.    Rep.    507;    Loocock   v.    Clark- 

Swasev,  106  Mass.  100;    Farnam  v.  son,    1    Desaus   Eq.   471;    Stuart   v. 

Bascom     122    Mass.    282 ;    Taylor's  Carson,  1  Desaus  Eq.  500. 

Estate     175   Pa.    St.   60;    Brovvn  v.  34  Warren   v.   Morris,   4   Del.   Ch. 

Brown.  79  Va.  648.  289;  Hinson  v.  Ennis,  81  Ky:    363; 

30  Sherman    v.    Baker.    20    R.    L  Boykin  v.   Boykin,  21   S.  Car.   513. 
613;  20R.  L  (Part  3),  218. 


926  LAW    OF    WILLS. 

realty  may  be  subjected  to  his  debts  if  his  personalty  proves 
insufhcient.  The  statutes  of  the  different  states  are  by  no 
means  uniform  upon  the  question  of  the  extent  to  which  testa- 
tor's realty  can  be  applied  to  payment  of  his  debts  and  legacies 
in  the  absence  of  a  specific  charge  upon  the  realty  In  many 
states  the  common  law  rules  apply,  and  all  specific  legacies 
abate  entirely  before  any  land  specifically  devised  can  be  sold 
for  testator's  debts.^^  Thus,  it  is  said  that  in  the  absence  of 
any  provision  in  the  will  for  testator's  debts,  they  are  to  be 
paid  first,  out  of  the  personalty ;  second,  out  of  lapsed  devises, 
and  other  intestate  realty;  third,  out  of  specific  devises.^*^  In 
other  states  devises  abate  with  legacies,  according  to  the  class ; 
that  is,  general  devises  will  abate  pro  rata  with  general  lega- 
cies, contributing  ratably  to  the  payment  of  testator's  debts; 
and  specific  devises  will  abate  pro  rata  with  specific  legacies.^^ 

§778.     Legacies  given  under  a  power. 

A  legacy  given  by  virtue  of  a  power  of  appointment  does  not 
abate  ratably  with  legacies  payable  out  of  the  property  of  tes- 
tatrix where  her  property  is  insufficient  to  pay  the  legacies 
which  she  has  given.^^ 

II— ADEMPTION. 

§779.     Ademption. — Definition. 

Ademption,  in  its  technical  signification,  is  the  destruction 
of  a  bequest  by  means  of  the  sale  or  destruction  of  the  thing 
specifically  bequeathed,  or  by  payment  by  the  testator  to  the 
legatee  in  the  lifetime  of  the  testator  in  the  nature  of  an  ad- 
vancement.      Ademption    thus    includes    two    separate    titles, 

35  Morse  v.  Hayden,  82  Me.  227;  36  Morse  v.   Hayden,   82  Me.  227. 

McFadden  v,  Hefley,  28  S.  Car.  317  •,  37  Kelly  v.   Richardson,    100  Ala. 

13    Am.    St.   Rep.    675;    Warley    v.  584. 

Warley,   —  Bail   Eq.   397 ;    Hull   v.  38  White   v.   Massachusetts    Insti- 

Hull,    3    Rich.    Eq.    65;    Farmer   v.  tute  of  Technology,  171  Mass.  84. 
Spell,  11  Rich.  Eq.  541. 


LAW     OF     WILLS.  927 

which  have  in  common  the  extinction  of  a  legacy  for  some 
canse  other  than  a  general  deficiency  in  the  assets  of  the  estate 
of  testator.  ^^ 

§780.     Ademption  by  change  of  ownership. 

When  a  chattel,  specifically  bequeathed  by  testator,  is  sold 
or  conveyed  by  testator  in  his  lifetime,  the  beneficiary  does  not 
take  anything  under  the  bequest  to  him,  and  the  bequest  is  said 
to  be  adeemed.^'^  So  a  gift  of  the  proceeds  of  certain  specific 
real  estate  upon  the  death  of  the  life  tenant  is  adeemed  by  the 
sale  of  such  real  estate  in  the  lifetime  of  tcstator.^^  So  a 
legacy  of  certain  specific  notes  secured  by  mortgage  is  adeemed 
by  the  subsequent  surrender  of  these  notes  by  testator  in  his 
lifetime,  and  by  his  accepting  a  deed  of  the  mortgaged  prop- 
erty,^^  or  by  testator's  collecting  such  notes.^^ 

On  the  other  hand,  where  testator  gave  a  legacy  to  a  certain 
named  son,  to  be  paid  by  deducting  this  legacy  from  the 
amount  due  from  such  son  to  testator  upon  certain  notes,  it 
was  held  thai  such  legacy  is  adeemed,  when  the  testator  gave 
these  notes  to  such  son  in  his  nfetime.-*^  A  bequest  to  testa- 
tor's three  sons  of  his  twenty-one  shares  in  a  partnership  is  not 
adeemed  by  tlie  subsequent  purchase  by  one  of  the  sons,  for 
value,  of  two  of  the  shares ;  but  the  remaining  nineteen  are  to 
be  divided  equally  among  the  three.'^^  So  a  legacy  to  A  to  en- 
able him  to  pay  B's  debt  is  adeemed  where,  after  making  the 
will,  testator  pays  B's  debt.^^  A  devise  to  the  minor  children 
of  A  is  not  revoked  or  adeemed  by  a  finding  that  testator  had 

39  Fisher  v.  Keithley,  142  Mo.  42  Tolman  v.  Tolman,  85  Me.  317. 
244 ;  64  Am.  St.  Rep.  560 ;  Burn-  43  Batehelor's  Succession,  48  La. 
bam  V.  Comfort,  108  N.  Y.  535.  Ann.   278 ;   Gilbreath  v.  Winter,   10 

40  Tolman  v.  Tolman,  85  Me.  317:  Ohio,  64. 

Brady  v.  Brady,  78  Md.  461;   Uni-  44  Davis    v.    Close,    104    lo.    264; 

tarian  Society  v.   Tufts,   151   Mass.  Wheeler  v.  Wood,  104  Jlich.  414. 

76:    7    L.   R.   A.    390;    Starbuck   v.  45 /„,  re  Lacon   (C.  A.)    (1891),  2 

Starbuck,    93    K    Car.    183;    Ford  Ch.   482. 

V.    Ford,    23    N.    h.    212;    Hood    v.  46  Tanton  v.   Keller,   61    III.   App 

Haden,  82  Va.  588.  625. 

41  Sharp  V.  McPherson,  10  0.  C.  C. 
181;  McMurry  V.  Whitfield  (Tenn. 
Ch.  App.),  52  S.  W.  336. 


928  LAW    OF    WJLLS. 

contracted  to  leave  to  A  a  share  of  his  estate  on  an  equality 
with  testator's  children ;  and  that  A  can  enforce  such  contract 
against  the  estate  of  testator.-*^ 

§781.     What  changes  do  not  affect  ademption. 

Where  property  specifically  bequeathed  remains  in  existence 
in  specie,  slight  and  immaterial  changes  in  its  form  do  not 
adeem  the  legacj.^*^  Thus,  a  devise  of  certain  specific  notes  is 
not  adeemed  bv  a  renewal  of  such  notes  with  sureties;^®  nor 
is  a  specific  bequest  adeemed  by  a  transfer  of  the  personalty 
bequeathed,  in  trust  for  testator,  with  the  understanding  that 
this  property  was  to  be  retransf  erred  to  him  f^  nor  is  a  devise 
of  a  ground  rent  adeemed  by  a  subsequent  extension  of  the 
time  of  the  original  lease.^^  A  devise  of  a-  specific  ground  rent 
is,  however,  adeemed  by  the  sale  and  extinguishment  thereof 
by  testator  in  his  lifetime;  and  a  ground  rent  subsequently 
purchased  with  the  proceeds  of  the  first  does  not  pass  under 
the  devise.^^  A  change  in  the  form  of  property  made  after  the 
insanity  of  the  testator,  by  the  guardian,  does  not  work  an 
ademption  where  such  property  can  be  traced.  Thus,  a  trans- 
fer of  certain  consols,  specifically  bequeathed,  from  the  name 
of  the  testatrix  to  that  of  the  paymaster  general  does  not 
adeem  such  bequest/'^^  The  doctrine  of  ademption  by  sale,  de- 
struction or  change,  applies  only  to  specific  bequests.  From 
its  nature  it  can  have  no  application  to  general  legacies.^* 
Where  a  devise  of  real  property  is  rendered  inoperative  by  a 
subsequent  sale  of  such  realty,  this  is  technically  spoken  of  as  a 
revocation,  and  not  as  an  ademption.^^  A  sale  or  destruction 
of  the  whole  of  the  property  bequeathed  effects  an  ademption, 

47  Nowack  V.  Berger,  133  Mo.  24  49  Shaffer's  Succession,  50  La. 
(hence   the    shares    devised    to    A's       Ann.  617. 

children  can  not  be  applied  in  part  so  Blakemore's  Succession,  43  La. 

on  A's  share).  Ann.  845. 

48  Brady  v.  Brady,  78  Md.  461.  si  Brady  v.  Brady,  78  Md.  461. 
So  a  bequest  of  "my  money  not  on  52  Harshaw  v.  Harshaw,  184  Pa. 
deposit"   in  a   certain  bank   is  not  St.   401. 

adeemed  by  testatrix's  withdrawing  53 /^  re  Wood   (1894).  2  Ch.  577. 

the  money  from  such  bank  and  de-  54  Sittig  v.  Hance,  81  Md.  416. 

positing  it  in  another  bank.     Pren-  ss  See  Sec.  278,  et  seq. 

dergast  v.   Walsh    (N.   J.)    42   Atl. 
l049. 


LAW     OF     WILLS.  929 

as  has  been  said.  But  a  sale  or  destruction  of  part  of  the  prop- 
erty bequeathed  effects  an  ademption  of  that  part,  but  not  of 
the  residue  undestroyed  and  belonging  to  testator  at  his  death. 

§782.     Ademption  by  compensation. — Realty. 

A  legacy  may  also  be  adeemed  by  the  delivery  by  testator  to 
legatee,  during  the  lifetime  of  testator,  of  some  thing  of  value, 
intended  as  a  compensation  for  such  legatee.  This  branch  of 
the  doctrine  of  ademption  is  often  classed  under  the  head  of 
Satisfaction.^*^  Satisfaction  has,  however,  another  technical 
meaning  which  will  be  discussed  subsequently.^'^  This  branch 
of  the  doctrine  of  ademption  is  also  sometimes  spoken  of  as 
Advancements.^^  Technically,  however,  the  doctrine  of  ad- 
vancements is  applicable  only  to  cases  where  testator  dies  in- 
testate, unless  where  on  his  will  he  specifically  directs  certain 
gifts  already  made  by  him  to  be  counted  as  advancements  in 
equalizing  the  distribution  of  his  estatc.^^ 

In  Virginia  it  has  been  held  that  the  doctrine  of  ademption 
by  gift  in  the  lifetime  of  testator  applies  to  devises  of  real  es- 
tate as  well  as  to  personal  property.*'*^  In  Delaware  it  has  been 
said  that  a  deed  of  the  same  land  as  that  devised  adeems  the 
devise.^^  But  the  great  weight  of  authority  is  contrary  to  this 
view,  and  in  most  jurisdictions  it  is  well  established  that  a  de- 
vise of  realty  can  not  be  adeemed  by  a  payment  of  money  in 
the  lifetime  of  testator. °^  A  devise  of  specific  realty  is  not 
adeemed  by  deed  of  other  realty.^^     "While  no  reason,  on  prin- 

56  Carmichael  v.  Lathrop,  108  by  conveyance  of  400  acres  of  other 
Mich.  473.  (In  this  case  this  doe-  land  together  with  certain  person- 
trine  is  spoken  of  as  "ademption  or       al  property.) 

satisfaction,"      and    the     court,     in  ^i  Marshall  v.  Rench,   3  Del.   Ch. 

speaking    of    such    gift,    says    that  239. 

the    will    "is    to    that    extent    satis-  ^2  Marshall   v.   Rench,    3   Del.   Ch. 

fied.")       Fisher    v.     Keithley,     142  239;     Weston  v.  Johnston,  48   Ind. 

Mo.   244;    64  Am.  St.  Rep.  56.  1;     Campbell    v.    Martin,    87    Ind. 

57  See  Sec.  794.  577 ;    Burnham  v.  Comfort,   108  N. 

58  Fisher  v.  Keithley,  142  Mo.  Y.  535 ;  2  Am.  St.  Rep.  462 ;  Al- 
244;  64  Am.  St.  Rep.  560.  len  v.  Allen,  13  S.  Car.  512;   Clark 

59  See  Sec.  786.  v.  Jetton,   5   Sneed    (Tenn.),  229. 
6oHansbrough  v.  Hooe,  12  Leigh.  63  gwails  v.  Swails,  98  Ind.  511; 

(Va.),  316;  37  Am.  Dec.  659.  (In  Fisher  v.  Keithley,  142  Mo.  244;  64 
this  case  a  devise  of  2,000  acres  of  Am.  St.  Rep.  560.  (In  this  ease 
land  to  A  was  held  to  be  adeemed        the  court  said:  "All  the  authorities 


930  LAW     OF     WILLS. 

ciples  of  justice  and  equitv,  seems  to  exist  for  the  distinction 
made  between  a  bequest  of  personal  property  and  a  devise  of 
real  estate,  yet  the  distinction  has  ever  been  most  uniformly 
made  by  the  courts,  not  because  the  equities  are  not  the  same, 
but  because  of  the  safeguards  that  have  ever  been  thrown 
around  the  transfers  of  realty  and  contracts  by  which  titles  are 
affected."*'* 

§783.     Ademption  by  compensation. — Personalty. — Where  testa- 
tor in  loco  parentis. 

The  doctrine  of  ademption  by  gift  in  testator's  lifetime  ap- 
plies, therefore,  only  to  the  ademption  of  bequests  and  legacies 
of  personal  property  by  means  of  a  gift  made  by  testator  to 
such  legatee  as  a  substitute  for  such  legacy.  Where  the  inten- 
tion of  testator  that  the  gift  shall  be  a  substitute  for  the  legacy 
is  clearly  established,  the  legacy  is  adeemed.^^  Where,  on  the 
other  hand,  testator  specifically  provides  that  "advances  made, 
and  that  may  hereafter  be  made,  be  treated  not  as  advances, 
but  as  gifts,  not  in  any  manner  to  be  accounted  for,"  his  in- 
tention that  the  advancement  shall  not  adeem  the  legacy  is 
clear,  and  must  be  enforced.*'*'  Where,  however,  testator's 
intention  does  not  appear  clearly,  the  question  presented  is 
what  presumption  arises  as  to  testator's  intention?  In  deter- 
mining what  testator's  intention  shall  be  presumed  to  be,  the 

so  far  as  we  are  advised,  except  one,  receipt  as  part  of  such  amount  as 

which    we    will    notice    further    on,  testatrix  might  see  fit  to  give,  was 

agree   that  the  doctrine   of   ademp-  held  not  to  be   an   ademption  of  a 

tion   only   applies   to   a   bequest   of  legacy     given     thereafter     by    will, 

personal  property.     We  find  but  one  Robbins  v.  Swain,  7  Ind.  App.  486. 

case   in    the    absence   of   statute   in  In  this  case  the  will  made  no  ref- 

which    it   has   been    held    applicable  erence    to    the    receipt,    and    it    ap- 

to  the  devises  of  real  estate.")     The  peared   from   the   subsequent   decla- 

one  case  referred  to  is  Hansbrough  rations    of    testatrix    that    she    in- 

V.  Hooe,  12  Leigh,  316,  already  cited.  tended  the  legacy  to  be  in  addition 

04  Fisher    v.    Keithley.     142     Mo.  to   the  gift  inter  vivos.      So  Jones 

244;  64  Am.  St.  Eep.  560.  v.  Eichardson,  5  Met.  247. 

68  Gray   v.    Bailey,   42   Ind.    349 ;  66  Adams     v.      Cowen      ( U.      S. ) 

Jaques   v.    Swasey,    153   Mass.    596.  (1900),  20  S.  Ct.  608,  affirming  80 

A  gift  before  the  execution  of  the  Fed.  448. 
will,    for    which    the    donee    gave    a 


LAW    OF    WILLS.  931 

first  distinction  is  between  the  cases  in  which  testator  stands 
in  loco  parentis  to  the  beneficiary,  and  those  in  which  he  does 
not.  Where  the  testator  stands  in  loco  parentis  to  the  benefi- 
ciary, a  gift  of  an  amount  equal  to  or  greater  than  the  legacy 
will  be  presumed  to  be  an  ademption  of  the  legacy,  and  a  gift 
of  a  less  amount  will  be  presumed  to  be  a  pro  tanto  ademp- 
tion.^^ 

At  one  time  it  was  held  that  a  gift  in  the  nature  of  an 
advance  of  a  part  of  the  legacy  operated  as  an  ademption  of 
the  whole  legacy  on  the  theory  that  testator  was  presumed  to 
intend  the  gift  as  a  substitute  for  the  legacy,  and  he  was  the 
best  and  only  judge  of  how  much  the  legatee  ought  to  receive 
by  way  of  compensation.*58  Tliis  rule  is  probably  not  in 
force  now  in  any  jurisdictions  and  a  gift  of  a  part  of  the 
legacy  is  held  a  pro  tanto  ademption  only.^^  At  one  time  it 
was  apparently  held  that  implied  ademption  did  not  exist 
where  the  original  gift  by  will  was  of  an  indefinite  amount, 
impossible  of  estimation,  such  as'  a  residuary  gift.'^° 

In  order  to  operate  as  an  ademption  the  gift  must  be  an 
absolute  one.  A  gift  to  the  son  for  his  life  with  remainder  to 
the  parent  mating  the  gift  is  not  to  be  regarded  as  ademp- 
tion.-^! 

The  rule  that  an  ademption  is  presumed  where  a  gift 
is  made  by  one  in  loco  parentis  to  the  beneficiary,  is  purely  a 
rule  of  prima  facie  presumption  and  is  always  subject  to  be 
rebutted  by  shoAving  that  testator  intended  such  gift  as  a  sep- 
arate and  additional  gratuity,  and  not  as  a  substitute  for  the 
legacy.'^^ 

67  Trimmer  v.  Bayne,  7  Ves.  508 ;  565 ;  Hopwood  v.  Hopwood,  7  H   I 

Ex  parte  Pye,  18  Ves.  140;  Shudall  Cas.   728;    Wallace  v.   Du   Bois,   65 

V.    Jeykl,    2    Atk.    518;     Tanton    v.  Md.    153;     Carmichael    v.    Lath'rop 

Keller,  167  111.  129;    47  N.  E.  376;  108   Mich.    473. 

Weston  V.  Johnson,  48  Ind.  1  ;    Car-  to  Freemantle   v.    Banks,    5    Ves. 

miehael  v.  Lathrop,  108  Mich.  473:  79;    Clendening  v.  Clymer,   17  Ind. 

Van  Houton  v.   Post,  33  N.  J.  Eq.  155. 

344;     Cory    v.    Lentner,    10    W.    L.  7 1  Wheeler      v.     Humphries^,     [H. 

J.   (Ohio),  246.  L.];     67    L.   .T.    Ch.   N.    S.    499,   af- 

<^^Ex  parte  Pye,  18  Ves.  140.  firming  66  L.  .1.  Ch.  X.  R.  236. 

69Pym   V.   Lockyer,   5  Myl.   &   C.  t2  Robbins  v.  Swain,  7   Ind.  App. 

29 ;  Montague  v.  Montague,  15  Beav.  486. 


932  LAW     OF     WILLS. 

§784.     Where  testator  not  in  loco  parentis. 

Where  testator  does  not  occupy  the  relation  of  the  parent 
to  the  beneficiary,  a  gift  made  by  testator  to  the  beneficiary 
is  not  presumed  to  be  an  ademption  of  the  legacy.''^  This  dis- 
tinction has  often  been  criticised  as  harsh  and  unjust,  since 
it  gives  an  advantage  to  legatees  who  are  not  closely  related 
to  testator  over  those  who  are,  but,  even  where  criticised,  has 
been  recognized  as  too  firmly  established  to  be  shaken.'^^  The 
reason  given  for  such  distinction  is  that  the  law  must  presume 
that  one  standing  in  the  relation  of  a  parent  intends  to  depart 
from  equality  in  the  distribution  of  his  estate  only  in  so  far 
as  indicated  by  his  will. 

The  old  reasons  given  by  Lord  Hardwick  are :  "This  court 
inclines  against  double  portions.  Another  good  one:  the 
court  considers  it  as  a  performance  of  what  was  intended  to 
be  done  and  paying  the  debt  of  nature  which  he  owed  to  his 
child."  '^^  Similar  reasons  have  been  repeated  in  later  de- 
cisions.^^ But  where  testator,  though  not  in  loco  parentis  to  the 
beneficiary,  makes  a  provision  for  the  beneficiary  by  will  which 
appears  to  have  been  a  compensation  for  services,  and  thus 
intended  as  a  satisfaction  of  the  debt,  it  is  held  that  such  leg- 
acy is  adeemed  by  giving  a  subsequent  check  for  the  amount 
of  the  legacy.'^'^ 

§785.     By  what  gifts  ademption  is  affected. 

The  presumption  that  a  gift  by  testator  standing  in  loco 
parentis  to  the  beneficiary  is  intended  as  an  ademption  of  a 
legacy,  applies  only  where  the  thing  given  is  of  the  same  kind 

73  Watson  V.  Lincoln,  1  Amb.  609.  The  doctrine  of  this  case 
325 ;  Wallace  v.  Du  Bois,  65  Md.  is  a  combination  of  the  doctrine  of 
153;  Carmichael  v.  Lathrop,  108  satisfaction  and  ademption.  The 
Mich.    473.  legacy   given   is   regarded    as   condi- 

74  Carmichael  v.  Lathrop,  108  tioned  iipon  the  existence  of  the 
Mich.  473.  debt  which   it   was   to   satisfy,   and 

75  Watson  V.  Lincoln,  1  Amb.  325.       accordingly  is  adeemed  by  the  pay- 
70  Wallace    v.    Du    Bois,    65    Md.       ment  of  such  debt,  even  though  the 

153;     Fisher    v.    Keithley,    142    Mo.        testator   did  not  occupy  the  paren- 
244;    64  Am.  St.  Rep.  560.  tal  relation  to  the  beneficiary. 

77  Turner's    Estate,     167    Pa.    St. 


LAW     OF     WILLS. 


933 


as  that  bequeathed.'^®  Thus,  where  testator  left  a  certain  sum 
of  money  for  the  education  of  the  minor  children  during  their 
minority,  it  was  held  that  this  legacy  was  not  adeemed  by  the 
fact  that  testator  expended  some  money  for  educating  one  of 
such  children  and  that  they  had  come  of  age  before  his  death.'^^ 
A  legacy  may  be  adeemed,  according  to  modern  authority,  by 
a  gratuitous  conveyance  by  testator  to  legatees  of  certain 
realty.®" 

Ill— ADVANCEMENTS. 

§786.     Advancements. — General  rule. 

The  general  rules  for  the  subject  of  advancements  apply, 
ordinarily,  only  in  case  of  intestacy  and  have  no  application 
where  testator  by  will  disposes  of  his  entire  estate,  since  the 
will  merges  all  advancements  made  by  testator  to  the  bene- 
ficiaries up  to  the  date  of  the  execution  of  the  will.®^  The 
effect  of  testator's  giving  the  property  to  the  beneficiaries  after 
making  the  will  comes  under  the  title  Ademption  and  is  there 
discussed.®^  But  where  testator,  by  will,  specifically  provides 
that  in  certain  contingencies  which  eventually  occur,  the  resi- 
due of  his  estate  shall  descend  as  if  he  had  died  intestate, 
advancements  made  by  him  must  be  taken  into  account  just 
as  in  cases  of  intestacy.®^ 

§787.     Advancements  provided  for  by  testator. 

A  testator,  however,  may  and  often  does  provide  expressly 
in  his  will  that  advancements  which  he  has  made  to  his  chil- 
dren in  his  lifetime  shall  be  deducted  from  the  shares  given  to 

T8  Goodfellow  V.  Biirchett,  2  Vern.  (1900).    20    S.    Ct.    668,    affirming 

298 ;   Saville  v.  Saville,  2  Atk.  458 ;  80  Fed.  448  :    Condell  v.  Glover,   56 

Ray  V.  Stanhope,  2  Ch.  Rep.  159.  111.    App.    107 ;    Lyon's    Estate,    70 

79  Bird's  Estate,  132  Pa.  St.  164.  To.  375;  Jones  v.  Richardson,  5 
For  the  effect  of  republication  upon  Met.   247. 

ademption,  see  Sec.   308.  82  See  Sees.  782  to  785. 

80  Carmichael  v.  Lathrop,  108  83  Trammel  v.  Trammel,  148  Ind. 
Mich.  473.                                                       487. 

81  Cowen      V.     Adams       (U.  S.) 


984  LAW     OF    WILLS. 

them  by  will.  Full  effect  is,  of  course,  given  to  such  direc- 
tions.*^ 

A  provision  that  in  case  testator's  account-books  do  not  show 
that  he  has  paid  a  certain  amount  annually  for  a  certain  pur- 
pose, his  executor  shall  pay  such  sum  as  will  make  up  such 
amounts,  is  in  legal  effect  a  direction  to  j)i\y  the  entire  annual 
sum  multiplied  by  the  number  of  years  prescribed,  less  such 
amounts  as  testator  had  paid  and  is  a  valid  bequest.*^ 

The  use  of  the  word  "advancements"  is  not,  however,  con- 
clusive. Thus,  a  provision  in  a  codicil  modifying  the  provi- 
sions of  the  will  because  of  "larger  advances"  made  by  testator 
to  some  of  his  children  than  to  others,  shows  that  testator  does 
not  intend  such  gifts  to  be  charged  as  advances  under  the 
codicil.*^  A  specific  direction  to  charge  certain  advancements 
against  A's  share  is  not  avoided  because  the  will  further  at- 
tempts to  limit  A's  share  upon  a  trust  void  as  against  per- 
petuities.*^ While  testator's  will  is  conclusive  as  to  what  are 
to  be  counted  advancements  and  what  a.e  not,  the  omission  to 
enumerate  among  the  advancements  sums  loaned  to  a  son  for 
which  notes  and  a  mortgage  were  given  by  such  son  does  not 
prevent  such  notes  and  mortgage  from  being  a  part  of  testa- 
tor's estate.**  Where  testator  provides  in  his  will  that  any 
advancements  or  loans  made  by  him  to  certain  named  legatees 
shall  be  treated  as  gifts  and  shall  not  be  accounted  for,  full 
effect  is,  of  course,  given  to  such  provision  and  the  property  is 
distributed  in  accordance  with  the  provisions  of  the  "will,  irre- 
spective of  advances.*^  The  questions  presented  under  this 
topic  for  judicial  discussion  are  chiefly  those  of  the  construc- 


84  Stewart   v.    Stewart,   L.   R.    15  ss  Holmes    v.    Coates,    159    Maas. 

Ch.    D.    539;    Blackstone's    App.    64  226. 

Conn.    414;     Eller    v.    Lillard,    107  se  Whitman    v.    White,    19    R.    I. 

N.    C.    486;    Eickelberger's    Estate,  431. 

1.35  Pa.  St.  160;    Snider  v.  Snider,  st  Dean    v.    Mumford,    102    Mich. 

149   Pa.    St.    362;    McConoray's   Es-  510. 

tate,   170  Pa.   St.   140;   Kennedy  y.  ss  Eisenbrey's  Estate,  180  Pa.  St. 

Badgett,   26   S.   C.   591;    Fielden   v.  125. 

Ballanger    (Tenn.  Ch.  App.),  35  S.  so  Cowen  v.  Adams.  78  Fed.  533; 

W.   758.  Vitt  V.  Clark,  66  Mo.  App.  214. 


LAW    OF    WILLS.  935 

tioii  of  such  provisions,  the  usual  questions  being  how  the  ad- 
vances are  to  be  estimated,  and  from  what  the  advances  are 
to  be  deducted. 

§788.     How  advances  are  to  be  estimated. 

Where  testator  does  not  indicate  any  method  of  ascertaining 
the  value  of  advancements,  but  merely  directs  that 
the  advancements  made  by  him  be  deducted  from  the  shares 
of  certain  legatees,  the  word  "advancements"  is  construed  with 
its  ordinary  common  law  meaning. 

Advancement  at  common  law  is  a  gift  to  a  presumptive  heir^ 
devisee  or  legatee  by  way  of  anticipation  of  his  share  of  donor's 
estate.^^  In  the  absence  of  evidence  showing  testator's  in- 
tention, property  conveyed  by  him  as  a  permanent  provision 
for  donee  is  I'egarded  as  an  advancement.  But  gifts  of  small 
sums  to  donor's  children  to  be  used  for  actual  support  and 
maintenance  will  not  be  regarded  as  an  advancement  in  the 
absence  of  evidence  of  testator's  intention.^^  If  testator  in  his 
will  states  the  amount  of  advances  which  are  to  be  deducted 
from  the  shares  given  by  will,  full  effect  must  be  given  to 
this  provision,  even  though  the  advances  treated  as  debts  would 
be  barred  by  limitations,  and  no  other  evidence  exists  as  to 
what  amounts  are.^^  But  a  direction  in  a  codicil  that  $900  be 
deducted  from  the  share  of  A,  and  the  balance  paid  to  A's 
wife,  is  not  a  gift  to  the  six  other  beneficiaries  of  $900,  but 
only  six-se\"entlis  of  nine  hundred  dollars,  since  A's  share  is 
charged  with  an  advancement  in  favor  of  all  the  beneficiaries 
including  A.  *  So  where  testator  in  his  will  provides  a  means 
for  estimating  the  value  of  real  estate  conveyed  by  him  as 
an  advancement,  this  method  must  be  followed.^^ 

9"  Millar's  App.   31   Pa.   St.   337;  600;     69    N.    W.    1033    (69    N.    W. 

Farnum's   Estate,    176   Pa.   St.   366.  438).    In  this  case  testator  provided 

91  Carmichael  v.  Lathrop,  112  that  the  value  of  the  advancements 
Mich.  301.  should     be     estimated     as     follo^vs: 

92  Eichelberger's  Estate,  135  Pa.  "The  consideration  named  in  the 
St.  160.  conveyance  to  be  considered  for  pur- 

*McConomy's  Estate,  170  Pa.  St.  pose  of  settlement;  the  amount  of 
140.  advances  or  if  no  sum  is  named,  the 

93  Ballinger   v.   Connable,    100  lo.       actual    cash   value   of   the   same   at 


936  LAW     OF     WILLS. 

Testator's  provisions  concerning  advancements  are  con- 
strued as  far  as  possible  in  accordance  with  the  general  rules 
on  the  subject  of  advancements.  Thus,  a  direction  that  testa- 
tor's son  shall,  in  settling  up  the  estate,  charge  himself  with 
a  bond  given  to  him  by  testator,  is  treated  as  merely  a  direc- 
tion that  snch  bond  shall  be  regarded  as  an  advancement  and 
is  not  a  gift  of  the  entire  amount  of  the  bond  to  the  other 
legatees.^^  Where  testator  makes  no  provision  in  the  will  for 
determining  the  amount  of  advancements  it  is  held  that  the 
actual  value  of  advancements  made  bv  testator  at  any  time 
before  his  death  must  be  taken  as  the  means  for  determining 
their  value.^^  The  value  at  testator's  death  is  sometimes  said  to 
be  the  value  at  which  such  advancements  should  be  charged.^^ 
As  advancements  are  gifts  outright,  interest  is  not  to  be  charged 
upon  such  advancements  against  the  legatee  or  devisee  unless 
testator  expressed  such  an  intention  clearly  in  his  mll.^^  A 
direction  to  reduce  the  shares  of  income  given  to  certain  leg- 
atees "by  an  amount  equal  to  the  interest  at  6  per  cent  of  said 
sums  .  .  .  advanced"  is  not  a  clear  expression  of  testator's 
intention  to  charge  interest  on  the  advancements.^*  Where 
testator  leaves  a  fixed  amount  to  certain  beneficiary,  less  the 
amount  of  certain  notes  which  testator  held  against  the  father 
of  such  beneficiary,  it  was  held  that  only  the  face  of  the  notes, 

the  time  of  the  division  of  the  es-  distributed  the  property  to  this  son, 

tate,  shall  be  considered  its  va^ue."  including    improvements    made    by 

In   one   deed    the    ccmsideration   re-  the  son,  must  be  taken  as  its  value 

cited    was    $1.00    and    natural    love  for  purposes  of  advancement. 

and  affection.     The  son,  however,  at  ^*  Moorman    v.   Crockett,  90    Va. 

the  same  time  signed  an  agreement  185;     so   McConomy's    Estate,    170 

fixing   the   value   of   the   realty   for  Pa.  St.  140  ( hence  the  maker  of  the 

purposes  of  charging  him  as  an  ad-  bond  retains  his  share  of  the  debt 

vancement.     It   was   held   that   the  in  the  settlement). 

amount  thus   agreed  upon  and  not  95  Vitt  v.  Clark,  66  Mo.  App.  214. 

the  cash  value  of  the  realty  should  as  Young  v.   Sadler,    (Ky.),  24  S. 

be  taken  in  estimating  the  value  of  ^^-  877:  15  Ky.  L.  R.  531. 

the  advancement.     It  was  also  held  ^"^  Farnum's   Estate,    176   Pa.    St. 

where  testator  had  allowed  a  son  to  366 ;    Porter's    Appeal,    94    Pa.    St. 

take  possession  of  certain  realty  and  332 ;    Miller's    Appeal,    31    Pa.    St. 

make  valuable  improvements  there-  337. 

on.  but  had  not  transferred  the  title  ®^  Farnum's   Estate,    176    Pa.    St. 

thereto,  that  the  cash  value  of  this  366. 

property,  at  the  time  the  executors 


LAW     OF     WILLS.  ^*" 


without  interest,  should  be  deducted  from  the  legacy,  where 
testator  evidently  intended  the  amount  given  to  provide  for  the 
maintenance  and  education  of  beneficiary  and  leave  a  residuum, 
a  result  which  would  be  impossible  if  interest  were  to  be  charged 
upon  the  notes.^^  Where  testator  specifically  directs  that  inter- 
est is  to  be  charged  upon  advancements,  full  effect  must  be 
given  to  such  provision.^'^o  Where  testator  gave  to  his  daughter 
"the  advances  she  has  received  as  per  private  account,"  it  was 
held  that  it  gave  to  the  daughter  the  balance  which  she  owed 
testator,  as  shown  by  his  private  account  at  the  time  of  his 
death.^*'^  A  direction  in  testator's  will  that  no  deduction  should 
be  made  "from  any  share  of  any  of  my  children  by  reason  of 
any  sums  which  I  have  given  or  advanced  to  or  account  of 
either  of  them,"   does  not  release  liability  for  a  loan  made 
by  testator  to  a  firm  to  which  one  of  his  children  was  a  mem- 
ber.i«2 

§789.     Legacies  from  which  advancements  may  be  deducted. 

Where  testator  makes  specific  devises  and  bequests  and  dis- 
poses of  his  property  by  a  residuary  clause  with  a  direction 
that  advancements  be  accounted  for,  it  is  usually  held  that  ad- 
vancements are  to  be  deducted  only  from  the  residuary  gift,^*'^ 
and  where  testator  directed  that  if  certain  advancments  should 
exceed  a  certain  son's  share  in  the  estate,  his  share  should  then 
consist  of  what  he  already  received  and  his  note  should  be 
canceled,  it  was  held  that  the  "share"  referred  to  the  distribu- 
tion in  the  Probate  Court  and  that  the  son  was  not  thereby 
debarred  from  an  interest  in  an  executory  contingent  bequest 
which  depended  upon  the  death  of  a  brother  without  issue.^"" 
Advancements  made  to  one  can  not  be  deducted  from  the  legacy 

90  Garth  V.  Cxarth,   139   Mo.  456;       taken  the  note  of  the  firm  together 

41  S    W    238  "^^'^^^   coHateral   security.) 

looHaysv.'  Freshwater   (W.  Va.)            los  Eller     v.    LiUard,    107     S.    C. 

( 1899) ,  34  S.  E.  831.  486 ;  Hughes  v.  Kirkpatrick,  37  S.  C. 

loiVitt    V.    Clark,    66    Mo.    App.       161. 

.104  Glover  v.  Condell,  163  111.  566. 

102  Rogers  V.  Maguire,  153  N.  Y.       reversing    56    App.    107. 

343.     (The  testator  in  this  casQ  had 


988  LAW    OF    WILLS. 

to  another/"^  unless  testator  by  his  will  specifically  so  pro- 
vides.^ ^"^  In  the  absence  of  any  provision  in  the  will,  it  is 
not  admissible  to  show  by  parol  that  testator  intended  that  a 
loan  to  a  son-in-law  should  be  deducted  as  an  advancement 
from  the  legacy  to  testator's  daughter,  the  wife  of  such  son- 
in-law.i^"^ 

§790.     Where  advances  exceed  legacy. 

It  is  sometimes  impossible  to  carry  testator's  intention  into 
effect  literally.  Thus,  where  the  advances  made  to  certain  bene- 
ficiaries exceeded  the  shares  from  which  such  advances  are  to 
be  deducted,  the  court  will  apply  this  legacy  to  equalizing  the 
shares  of  those  receiving  the  smallest  advancements  as  far  as 
the  legacies  available  will  so  do.^*^^  A  direction  that  the  notes 
held  by  testator  against  a  certain  son  are  to  be  treated  as  ad- 
vancements and  deducted  from  his  share  operates  as  a  gift  of 
such  indebtedness,  although  the  son  received  no  share  of  the 
estate  from  which  the  note  could  be  deducted.^^^ 

IV— CONTRIBUTION. 
§791.    Property  taken  for  testator's  debts  in  order  of  priority. 

Since  the  rights  of  creditors  of  testator  are  paramount  to 
those  of  the  devisees  and  legatees,  property  either  specifically 
or  generally  devised  or  bequeathed  is  not  infrequently  sold  for 

105  Erwin  v.   Smith,  95  Ga.   699 ;  should  be  set  off  against  a  certain 

Albert  v.  Albert,  74  Md.   526    (the  legacy.      This    legacy    was    payable 

amount  charged  on  testator's  books  in  equal   proportions  to  A  and  his 

against  a  deceased   son  can  not  be  children.     It  was  held  that  in  th(! 

charged  against  the  children  of  such  settlement,   the  advancements  to   A 

son)  ;     Coyne  v.   Boyce,   78  Md.  22.  were  to  be  deducted  from  the  entire 

(Thus  a  direction  to  pay  the  debts  legacy,    and    not    merely    from    A's 

of  a  certain  son  and  to  charge  such  share  thereof.) 

debt    and    advances    made    to    him  iot  Erwin  v.  Smith,  95  Ga.  699. 

against  his  share  of  the  estate,  was  los  Board   v.    Love    (Ky.).    42    S. 

held    to    direct    that    such    debt    be  W.  733;  19  Ky.  L.  Rep.  1121;  Cope 

paid  out  of  the  son's  share  only.)  v.  Farmer,  8  O.  C.  C.  145. 

106  Price  v.   Douglass,    150  Mass.  io9  Snider  v.   Snider,   149  Pa.  St. 

96.     (In   this   case  testator   provid-  362. 
ed  that  certain  advances  made  to  A 


LAW     OF     WILLS.  939 

the  payment  of  testator's  debts.  When  this  is  done,  the  question 
arises  whether  the  beneficiaries  whose  interests  have  been  dis- 
appointed by  such  sale  have  a  right  to  call  on  other  beneficiaries 
for  compensation  for  the  entire  amount  of  the  devise  or  legacy 
of  which  they  are  thus  deprived,  or  for  a  pro  rata  contribution 
in  order  that  the  burden  may  be  borne  equally  or  whether  the 
loss  must  lie  with  such  devisee  or  legatee.  The  doctrines  ap- 
plicable to  this  subject  are  but  little  more  than  a  re-statement 
of  the  doctrine  of  abatement  and  charge  of  legacies. 

If  the  property  devoted  to  the  payment  of  testator's  debts  has 
been  taken  in  the  order  of  priority  required  by  the  doctrines 
of  abatement  and  a  charge  upon  legacies,  a  disappointed  lega- 
tee can  not  call  upon  other  beneficiaries  whose  gifts  have  a 
priority  over  his  for  either  compensation  or  contribution.^^'* 
Thus,  where  devised  land  is  encumbered  with  a  lien  incurred 
by  testator  for  which  lie  is  personally  liable,  and  the  entire 
personal  property  of  testator  has  been  applied  to  the  payment 
of  such  lien,  a  disappointed  legatee  can  not  call  upon  the  de- 
visee of  such  property  for  contribution.^^* 

§792.    Property  taken  for  testator's  debts  out  of  order  of  priority. 

Where  property  is  taken  for  the  pavment  of  testator's  debts, 
which  is  given  by  a  legacy  or  devise  having  priority  over  gifts 
of  other  pieces  of  property  which  are  not  taken  for  testator's 
debts,  the  disappointed  beneficiary  may  have  compensation  for 
the  loss  of  his  property  in  full  from  such  beneficiaries,  and 
where  several  legatees  or  devisees  are  on  a  footing  of  equality 
with  reference  to  the  pavment  of  their  devises  or  legacies,  and 
property  given  to  one  of  them  is  taken  for  payment  of  testa- 
tor's debts,  that  one  may  have  pro  rata  contribution  from  the 
other  devisees  and  legatees  for  the  loss  of  his  gift.-^*^  Where 
a  fund  which  should  have  been  taken  first  for  paying  debts  and 

110  Duffield  V.  Pike,  71  Conn.  ,521 ;  "2  Coapland  v.  Lake,  87  Tex.  261  ; 
Todd  V.  McFall,  —  Va.  —   (1899)  :       9  Tex.  Civ.  Apj).  39. 

1  Va.  S.  C.  Rep.  166;  32  S.  E.  47-?. 

111  Todd    V.    McFall.    —    Va.    — 
(1899)  ;    32    S.   E.   272. 


940  LAW    OF    WILLS. 

taxes  is  paid  to  certain  legatees,  the  amount  thus  taken  may- 
be withheld  from  other  funds  payable  to  them,  so  that  the 
burden  may  not  be  cast  upon  a  preferred  beneficiary.^ ^^  Where 
testator  by  will  specifically  provides  that  certain  legatees  must 
contribute  for  any  loss  to  the  estate  which  the  executor  may 
have  to  pay  on  account  of  testator's  being  a  security  for  others, 
it  is  held  that  such  direction  does  not  call  for  contribution  for 
losses  which  testator  paid  before  his  death.^^^ 

§793.     Failure  of  title. 

The  question  of  contribution  and  compensation  is  sometimes 
raised  where  the  title  to  property  bequeathed  or  allotted  fails. 
Ordinarily,  where  the  title  to  a  chattel  or  piece  of  realty  specif- 
ically given  by  will  fails,  the  specific  devisee  or  legatee  has  no 
right  of  contribution  against  other  beneficiaries;  however, 
where  testator's  intention  is  evidently  that  his  estate  shall  be 
equally  divided,  and  he  allotted  specific  property  merely  for 
the  purpose  of  creating  an  equal  division,  it  has  been  held  that 
where  title  to  certain  property  fails  because  of  facts  which  were 
not  known  to  testator,  the  disappointed  beneficiary  may  have 
contribution  from  other  beneficiaries. ^^^  The  right  of  contri- 
bution where  title  fails  is  specifically  given  by  statute  in  some 
jurisdictions.  This  rule  applies,  however,  only  to  specific  gifts, 
and  does  not  apply  where  the  property  is  allotted  by  decree  of 
distribution  and  is  not  specifically  given  by  the  will.^^*'  Where 
a  fund  is  lost  by  the  conduct  of  the  executors  after  it  has  been 
set  apart  out  of  testator's  general  estate,  the  beneficiary  thus 
disappointed  can  not  have  compensation.^  ^'^ 

113  Nelson  v.  Worthington,  3  App.  compare  Henry  v.  Griffis,  89  lo. 
D.  C.  503.  543,    where    contribution    was    had 

114  Ahalt  V.  Hersperger,  75  Md.  for  a  pecuniary  legacy  lost  by  the 
88.  wrongful    act   of    the   executor.      In 

113  Lake    v.     Copeland,     82     Tex.  this  case,  however,  the  will  provided 

464.  that  if  there  were  not  enough  per- 

116  Pusey  V.  Wathen,  90  Ky.  473.  sonalty  to  pay  the  legacy,  "the  boys 

iiT  Mills  V.  Smith,  141  N.  Y.  256;  is  to  pay  enough  to  make  it  good." 


LAW     OF     WILLS.  941 

Where  a  specific  devise  fails  by  the  election  of  the  widow 
to  take  her  dower  instead  of  under  the  will,  the  disap- 
pointed devisee  can  not  have  contribution  from  the  residuary 
devisee.  ■'^^ 


us  Devecmon    v.    Kuykendall,    89 
Md.  23. 


942  LAW     Oh'     WJLLB. 


CHAPTER   XXXVllI. 

SATISFACTION;   AND  CUMULATIVE  AND  SUBSTITU- 
TIONAL LEGACIES.  . 

§794.     By  gift  to  debtor. 

In  discussing  the  subject  of  advaiTcements  we  have  already 
seen  that  if  testator  specifically  releases  a  debt  due  him  from 
another,  full  effect  is  given  to  such  direction  if  it  docs  not  in- 
terfere with  the  rights  of  testator's  creditors.^  Where  testator 
gives  a  legacy  to  one  who  is  indebted  to  him,  without  any  ex- 
pression of  testator's  intention  to  release  such  debt,  the  mere 
fact  of  giving  such  legacy  does  not  of  itsolf  operate  as  a  release 
of  the  debt.^  In  such  case  the  indebtedness  may  bo  deducted 
from  the  legacy  where  the  legacy  exceeds  the  indebtedness  as  a 
convenient  means  of  adjusting  the  mutual  credits.^  Where 
part  of  the  debt  due  to  testator  is  secured,  and  part  is  unse- 
cured, the  legacy  may  be  deducted  from  tlie  secured  portion."* 
The  right  to  credit  the  legacy  against  the  indebtedness  exists 
even  where  the  indebtedness  is  evidenced  by  a  note  which,  by 

iSee  Sec.  787.  ^  In  re  Taylor  (1894),  1  Ch.  671: 

2  Hayward  v.  Loper,   147   I"il.  41,  Hayward    v.    Loper,     147    111.    41 ; 

affirming    49    111.    App.    53;    Spath  Sleeper    v.    Kelley,    05    N.    H.    200: 

V.  Zie.cler.  48  La.  Ann.  1168;  Sleep-  Chaffee  v.  Maker,  17  R.  I.  739. 

er  V.  Kelley,  65  N.  H.  206 ;  Bailey's  *  Sleeper  v.  Kelley,  65  N.  H.  200 

Estate,    153    Pa.    St.    402;    Chaffee 

V.  Maker,  17  R.  I.  739. 


LAW     OF     WILLS.  "^ 

mistake,  was  drawn  to  nm  for  tbe  life  of  the  maker  instead  of 
the  life  of  the  testator.^  Xor  is  the  debt  released  by  the  omis- 
sion to  enumerate  it  among  the  advances  made  by  testator  to 
his  children,  where  the  debtor  (testator's  son)  had  given  his 
notes  and  mortgage  for  such  debt.«  A  gift  to  a  debtor  of  a  cer- 
tain sum  "inclusive  of"  the  note  of  such  debtor,  held  by  testa- 
tor, does  not  show  an  intention  to  give  the  legacy  and  the  debt.'' 

^795.     By  gift  to  creditor.— Where  satisfaction  presumed. 

If  testator  gives  property  by  will  to  one  to  whom  he  is  in- 
debted, it  is  often  difficult  to  determine  whether  testator  in- 
tended this  legacy  in  satisfaction  of  the  debt,  or  in  addition  to 
it.  If  testator's  intention  does  not  appear  in  the  will,  the  fol- 
lowing distinction  is  generally  adopted  by  the  courts : 

If  the  legacy  given  to  the  creditor  is  equal  to  or  greater  than 
the  amount  of  the  existing  debt,  and  is  of  the  same  nature,  is 
payable  in  a  manner  equally  advantageous  to  the  creditor,  and 
no  specific  motive  is  assigned  for  the  gift,  the  legacy  will  be 
considered  as  a  satisfaction  of  the  debt.^ 

In  some  jurisdictions  it  is  held  that  there  is  never  a  pre- 
sumption that  a  gift  is  intended  as  a  satisfaction  of  a  debt,  but 
that  testator's  intention  must  appear  on  the  will  to  cause  this 
result.^ 

§796.     By  gift  to  creditor.— Where  no  satisfaction  presumed. 

But,  in  the  absence  of  any  of  these  elements,  the  legacy  is 
not  considered  as  a  satisfaction  of  the  debt.  Thus,  where  the 
legacv  is  less  in  amount  than  the  debt,^^  or  is  payable  at  a 
longer  time  than  the  original  debt,^^   or  upon  terms  less  ad- 

.Ha.-M-ard  v.  Loper,   147   111.  41,  17  S.  W.  742;    so  by  statute.  Jack- 

affirming  49  111.  App.  53.  son's  Succession    47  La^  Ann.  108 J. 

eEisenbrev's  Estate,   180  Pa.   St.  lo /„   re   Horlock      189.3),    1    Cb. 

516;    Thompson   v.   ^^  ilson,    82    111. 

7  Pepper's  Estate,  154  Pa.  St.  340.  App.  29;   Stone  v.  Pennock,  31  Mo. 

sFetrow  v.  Krause,  61  111.  App.  App.  544.  ^  ,  ^  ^,^..,  .  ^, 
238;  Adams  v.  Adams,- 55  X.  J.  Eq.  ^^ /«    re   Horlock    {189o),    1    Ch. 


42. 

» Lisle    V.    Tribble     (Ky.),    1892: 


510. 


944  LAW    OF    WILLS. 

vantageous  to  the  creditor/^  the  legacy  is  considered  as  a  gift, 
independent  of  the  debt,  and  not  a  satisfaction. 

A  bequest  to  a  creditor  contained  in  a  will,  executed  after 
the  debt  was  incurred,  but  before  the  exact  amount  was  ascer- 
tained, was  not  considered  prima  facie  as  a  satisfaction  of  such 
debt.^^  So  where  testatrix  was  indebted  to  her  children  in 
various  indefinite  amounts,  arising  out  of  her  guardianship  of 
their  estate  during  minority,  and  she  bequeathed  all  her  estate 
to  them,  share  and  share  alike,  it  was  held  that  this  was  not  in- 
tended in  satisfaction  of  the  debts  due  from  her  to  them. 
Hence,  where  she  subsequently  paid  one  of  her  children  in  full, 
it  was  held  that  upon  final  distribution  of  her  estate  the  one 
thus  paid  was  not  preferred  to  the  others  by  the  amount  of  the 
debt.^^  It  is  still  clearer  that  where  the  indebtedness  is  in- 
curred after  the  will  is  executed  a  legacy  given  by  will  can  not 
be  considered  prima  facie  as  a  satisfaction  of  such  indebted- 
ness.^^ 

§797.     Where  testator  directs  satisfaction. 

Where  testator's  intention  is  clearly  expressed  in  the  will, 
either  that  the  legacy  is  a  satisfaction  or  is  not,  full  effect  will 
be  given  to  this  direction ;  subject,  of  course,  to  this  condition 
that,  if  the  legacy  is  given  as  a  satisfaction  of  the  debt,  the 
creditor  has  the  election  whether  to  adopt  the  legacy  or  to  col- 
lect the  debt.^^  Thus,  testator  provided  by  will  for  the  pay- 
ment of  a  note  described  as  a  note  of  $12,000  due  to  A.  The 
only  note  which  testator  owed  A  was  one  for  $10,000.  It  was 
held  that  testator  merely  intended  a  satisfaction  of  the  debt 
actually  due  to  A ;  and  did  not  intend  to  give  A  a  legacy  of 
$12,000,  of  which  $10,000  was  in  satisfaction  of  the  note.^^ 

12  stone  V.  Pennock,  31  Mo.  App.  i*  Glover  v.  Patten,  165  U.  S. 
544.  394. 

13  Glover  v.  Patten,  165  U.  S.  is  Sullivan  v.  Latimer,  38  S.  C. 
394;  Reynolds  v.  Robinson,  82  N.  Y.  158. 

103;  Heisler  v.  Sharp,  44  N.  .T.  Eq.  is  .Jackson's    Succession,    47    La. 

167;     Crouch    v.    Davis,    23    Gratt.       Ann.  1089. 

(Va.)    62.  17  Wildberger    v.    Cheek,    94    Va. 

517. 


LAW    OF    WILLS.  946 

A  general  direction  by  testator  that  his  debts  should  be  paid 
has  been  held  sufficient  to  show  his  intention  that  a  legacy  to  a 
creditor  should  not  be  treated  as  a  satisfaction  of  the  debt  due 
to  such  creditor. ^^  Where  the  reference  to  the  creditor  as  such 
is  intended  merely  as  a  description,  it  will  not  be  held  to  be  a 
direction  for  satisfaction.^^ 

II— CUMULATIVE  AND  SUBSTITUTIONAL  LEGACIES. 

§798.     Cumulative    and    substitutional    legacies. — Where    testa- 
tor's intention  is  expressed. 

If  testator,  by  will,  or  by  will  and  codicil  or  codicils,  makes 
two  or  more  gifts  to  the  same  person  or  persons,  the  question 
arises  whether  the  second  gift  is  intended  by  testator  to  be  in 
addition  to  the  first,  or  as  a  substitute  for  the  first.  If  the  sec- 
ond legacy  is  intended  by  testator  to  be  given  in  addition  to  the 
first  legacy,  the  second  is  commonly  spoken  of  as  a  ''cumulative 
legacy."  If  the  second  legacy  is  intended  by  testator  to  be 
given  in  the  place  of  the  first,  it  is  commonly  spoken  of  as  a 
"substitutional  legacy." 

If  testator  has  expressed  his  intention  that  the  second  legacy 
shall  either  be  a  substitute  for  the  first,  or  in  addition  to  it,  the 
question  is  a  simple  one,  for  testator,  of  course,  has  power  to 
give  more  than  one  legacy  to  the  same  person,  or  to  revoke  the 
first  legacy,  and,  if  he  pleases,  to  substitute  another  therefor. 
Accordingly,  where  language  is  used  which  shows  that  testator 
intended  to  revoke  the  first  legacy  and  give  the  second  as  a  sub- 
stitute for  the  first,  full  effect  is  given  to  such  intention. ^^ 

Any  form  of  language  which  shows  the  testator's  intention 
to  substitute  the  second  gift  for  the  first  will  be  sufficient.     The 

18  In  re  Huish,  L.  R.  43  Ch.  Div.  as  a  satisfaction  of  his  claim  of  pro- 
260;  Wade  v.  Dean  (Ky. ),  43  S.  W.       fessional   services). 

441;  19  Ky.  L.  Rep.  1426.  20/^   re   Freme's   Estate    (1895). 

19  Swing  V.  Gatch,  7  Am.  Law  2  Ch.  778 ;  Hollyday  vs.  HoUyday. 
Rec.  5;  3  Weekly  Law  Bull.  571  (a  74  Md.  458;  Hard  v.  Ashley,  117 
gift  to  "my  good,  kind,  attentive  N.  Y.  606;  Whelen's  Estate,  175 
physician,"  held  not  to  be  intended  Pa.  St.  23. 


946  LAW    OF    WILLS. 

expressions  commonly  used  are  "instead  tliereof,"^^  or,  "in  lieu 
thereof,"^^  or,  "in  place  and  stead  thereof. "^^  So,  where  tes- 
tator expresses  his  intention  to  give  a  devise  or  legacy  in  addi- 
tion to  that  given  by  will,  the  legacy  or  devise  is  unquestion- 
ably cumulative.  Thus,  where  testator  provided  that  the  sec- 
ond legacy  should  be  "in  addition  to  the  same,"^^  or  that  it 
should  be  paid  "further,""^  it  was  held  to  be  cumulative. 

§799,     Presumption  where  testator's  intention  is  not  expressed. 

It  very  frequently  happens,  however,  that  testator  does  not 
indicate  whether  his  intention  was  to  give  a  substitutional  or  a 
cumulative  legacy.  In  such  a  case,  the  courts  endeavor  to  dis- 
cover the  intention  of  the  testator  from  the  whole  instrument, 
and  have  built  up  a  series  of  rules  as  to  the  presumptions  which 
arise  under  given  states  of  fact.  These  presumptions,  how- 
ever, yield  very  readily  to  anything  in  the  will  which  shows  tes- 
tator's intention.^^ 

The  presumption  either  way,  whether  against  cumulation 
because  the  legacy  is  repeated  in  the  same  instrument,  or 
whether  in  favor  of  it  because  the  legacy  is  by  different  instru- 
ments, is  liable  to  be  controlled  and  repelled  by  internal  evi- 
dence and  the  circumstances  of  the  case.^^ 

Where  the  gift  is  specific,  little  question  can  arise  as  to 
whether  it  was  substitutional  or  cumulative.     If  the  evidence 

21  Freme's  Estate  (1895),  2  Cli.  and  courts  of  equity  upon  the  sub- 
778;  Hollyday  v  Hollyday,  74  Md.  ject  of  single  or  cumulative  lega- 
458.  cies,    we    must    come    down    to    the 

22  Hard  v.  Ashley,  117  N.  Y.  600.  plain,     common-sense    question    of, 

23  VVhelen's  Estate,  175  Pa.  St.  what  was  the  intention  of  the  testa- 
23.  tor?"     Jones  v.  Creveling,  19  N.  J. 

24  Thompson  v.  Churchill,  60  Vt.  Law,  127.  (While  this  case  was 
371 ;  so  Townsend  v.  Mostyn,  26  reversed  in  21  N.  J.  Law.  573,  by 
Beav.  72.  a  divided  court,  as  to  the  particular 

25  Burkinshaw  v.  Hodge,  22  W.  application  of  the  rules  of  presump- 
R.  484;  Ledger  v.  Hooker,  18  Jur.  tion  to  the  particular  facts,  the 
481.  general    principle    stated    was    rec- 

26  "After    a    careful    examination  ognized. ) 

of  the  cases  cited  on  the  argument,  27  DeWitt   v.   Yates,    10   .Johnson, 

and  of  many  others,  notwithstand-  156.      These    cases    are    quoted    and 

ing    all    the   nice    distinctions   that  cited  with  approval   in  Edwards  v. 

have  been   taken   by   courts   of   law  Rainier,  17  O.  S.  597. 


LAW     OF    WILLS. 


947 


identifying  the  language  given  shows  that  the  same  property 
was  disposed  of  twice  by  the  same  person,  there  can,  of  course, 
be  no  claim  that  other  property  was  disposed  of.  The  question 
is  purely  one  of  the  identification  of  the  property  referred  to 
in  the  will.^^ 

The  real  difficulty  arises  where 'the  gift  is  a  general  legacy — 
such  as  the  gift  of  a  sum  of  money.  In  such  case,  it  is  a  priina 
facie  rule  of  presumption  that  if  two  or  more  legacies  are  given 
to  the  same  person,  each  by  a  different  instrument — such  as  by 
a  will  and  a  codicil,  or  by  more  than  one  codicil — the  presump- 
tion will  be  that  the  gifts  are  intended  by  the  testator  as  cumu- 
lative.2^  If  the  second  gift  is  different  in  nature  or  in  amount, 
the  prima  facie  presumption  is  that  it  is  intended  as  a  cumula- 
tive gift,  even  if  given  in  the  same  instrument.^^ 

Where  testator  expressed  his  motive  or  reason  for  making 
the  gift,  and  the  motive  or  reason  is  the  same  for  the  two  gifts, 
it  may  show  that  the  second  gift  is  substitutional,   and    not 


2?  Suisse  V.  Lowther,  2  Hare, 
424. 

20  Manifold's  Appeal,  126  Pa.  St. 
508,  citing  and  quoting  Roper  on 
Legacies,  996:  "If  the  legacies  are 
given  by  the  same  instrument,  and 
are  of  the  same  nature  and  amount, 
the  presumption  is  that  the  secoml 
is  a  substitutional  and  not  a  cum- 
ulative legacy,"  Creveling  v.  Jones, 
21   N.  J.   Law,   573. 

In  this  case  the  provision  of  the 
will  was  as  follows:  "I  give  unto 
C.  J.  &  D.  J.  each,  four  hundred 
dollars,  to  be  paid  to  them  by  my 
executors ;  if  they  are  not  of  age  at 
my  decease,  I  order  my  executors 
to  pay  each  of  them  yearly,  and 
every  year,  the  interest  on  four  hun- 
dred dollars  until  they  arrive  at 
age.  I  further  order  my  execu- 
tors to  pay  out  of  my  estate  to  C.  J. 
four  hundred  dollars  one  year  after 


my  decease,  and  to  pay  D.  J.  four 
hundred  dollars  two  years  after  my 
decease,  in  full  of  their  legacies,  be- 
queathed to  them." 

The  court  was  urged  to  consider 
the  word  "further,"  as  showing  tes- 
tator's intention  to  make  a  cumu- 
lative legacy.  This  view  was  taken 
below  in  Jones  v.  Creveling,  19  N. 
J.  Law,  127,  but  this  decision  was 
finally  reversed  by  a  divided  court, 
where  it  was  held  that  the  last 
clause  was  merely  a  direction  for 
the  payment  of  the  legacy  given  in 
the  preceding  clause.  So  Wray  v. 
Field,  6  Madd.  300;  Dickinson  v. 
Overton,   57   N.   J.   Eq.   26. 

3oAdnam  v.  Cole,  6  Beav.  353: 
Curry  v.  Pile,  2  Bro.  C.  C.  225. 

Contra  where  given  in  same  in- 
strument. Dickinson  v.  Overton,  57 
N.  J.  Eq.  26. 


948 


LAW    OF    WILLS. 


cumulative,  even  though  it  is  given  by  a  later  instrument,^'' 
or  it  is  different  in  amount  from  the  first  gift.^^ 

A  slightly  different  case  involving  the  same  principle  is  that 
in  which  the  question  for  the  court  to  determine  is,  whether  a 
second  provision  for  payment  is  intended  as  an  additional  gift, 
or  is  merely  a  direction  as  to  the  manner  of  paying  the  legacy 
previously  given.  If  any  provision  is  made  for  the  payment  of 
the  first  legacy,  and  if  the  second  provision  directs  the  time  or 
means  of  paying  a  legacy  of  the  same  amount  to  the  same  per- 
son, the  presum])tion  is  that  the  second  provision  is  not  an  ad- 
ditional gift,  but  is  merely  a  provision  for  paying  the  legacy 
already  given."*^ 

If  the  two  legacies  are  payable  at  different  times 
and  places,  the  presumption  is  that  they  are  cumulative, 
even  though  they  are  given  in  the  same  instrument.^^  Where 
the  two  gifts  are  given  in  the  same  instrument  to  the  same 
beneficiary,  and  are  of  the  same  amount  and  value,  the  prima 
facie  rule  is  that,  in  the  absence  of  anything  showing  a  con- 
trary intention,  the  legacies  are  presmned  to  be  substitu- 
tional.^^ 


31  Hurst  V.  Beach,  5  Madd.  358; 
21  R.  R.  304. 

32  Sears  v.  Hardy,  120  Mass.  524. 
In  this  case  the  provision  was  that 
testator's  son  should  receive  $30.- 
000,  to  be  paid  to  him  at  the  age 
of  21 ;  and  when  he  should  be  21 
years  old,  "I  direct  that  four  thou- 
sand dollars  be  paid  to  him  annu- 
ally :  when  he  shall  be  twenty-five 
years  old,  six  thousand  dollars  per 
year,  and  ten  thousand  dollars  per 
year  when  he  shall  be  thirty  years 
old."  It  was  held  that  the  annuity 
of  six  thousand  dollars  a  year,  being 
for  the  support  of  the  son,  was  a 
substitution  for  that  of  four  thou- 
sand dollars,  and  the  annuity  of  ten 
thousand  dollars  was  a  substitute 
for  that  of  six  thousand  dollars. 

33  Creveling  v.  Jones,  21  N.  J. 
Law,  573.  (In  this  case  the  second 
provision  fixed  tne  time  of  pay- 
ment.)    Powell's  Estate,  138  Pa.  St. 


322.  (In  this  ease,  testator  devised 
three  thousand  dollars  to  his  daugh- 
ter, one  thousand  dollars  each  to 
two  of  his  sisters,  and  then  by  will 
provided  that  certain  stock  should 
be  sold  in  order  to  pay  "the  above 
funeral  expenses,  and  five  thousand 
dollars  to  my  daughter  and  sis- 
ters.") 

It  was  held  that  this  was  a  direc- 
tion for  the  means  of  paying  a  leg- 
acy already  given,  and  not  an  ad- 
ditional legacy.  So  Early  v.  Ben- 
bow,  2  Coll.  C.  C.  342;  15  L.  J. 
Ch.    169;    10  .lur.   169. 

34lngelfield  v.  Coghlan,  2  Coll. 
C.  C.  247;  Thompson  v.  Teulon,  22 
L.  J.  Ch.  243 ;  1  W.  R.  97. 

35  Brennan  v.  Mo  ran,  16  Ir.  Ch. 
126:  Garth  v.  Meyrick,  1  Bro.  C. 
C .  30 ;  Manning  v.  Thesiger,  3  Myl. 
&  K.  29;  4  L.  J.  Ch.  285;  Dickin- 
son V.  Overton,  57  N.  J.  Eq.  26. 


LAW    OF    WILLS.  949 

§800.     Incidents  of  substitutional  and  cumulative  legacies. 

Where  a  testator  makes  a  devise  or  bequest  by  a  later  instru- 
ment, such  as  a  codicil  which  is  held  to  be  substitutional  in 
its  nature,  and  in  lieu  of  the  legacy  or  devise  previously 
given  by  will,  it  is  held  that  if  the  original  legacy  or  devise  con- 
tained any  qualifications  or  limitations  of  any  sort  the  substi- 
tutional legacy  or  devise  is  to  be  considered  as  given  subject  to 
the  same  qualifications  and  limitations,  unless  testator's  inten- 
tion to  the  contrary  clearly  appears.^^  Thus,  a  testator,  by  a 
will,  devised  the  proceeds  of  a  certain  ranch  to  A,  subject  to 
the  payment  of  certain  specified  legacies  out  of  such  proceeds ; 
and,  by  a  codicil  executed  after  the  death  of  A,  he  provided 
that  "the  amount  I  did  bequest"  to  A  should  be  paid  to  B.  It 
was  held  that  B  took  the.  proceeds  of  the  ranch  subject  to  the 
payment  of  the  legacies  mentioned  in  the  will.^'^ 

Where  the  residuum  was  to  be  equally  divided  among  the 
children,  deducting  advancements  made  to  them,  and  a  subse- 
quent codicil  revoked  the  gift  to  one  of  testator's  sons  and  gave 
it  instead  to  the  wife  of  such  son,  it  was  held  that  she  took  sub- 
ject to  advances  made  to  the  son.^* 

On  the  principle  already  stated  in  the  text,  a  substitutional 
gift,  or  a  legacy  which  Avas  made  a  charge  on  a  specific  fund, 
was  payable  out  of  the  same  fund  as  the  original  gift.^^    Where 

36  Freme's   Estate    (1895),   2   Ch.  as   is  the  original   legacy,   irrespec- 

778 ;    Duncan  v.    Duncan,   27    Beav.  tive    of    whether    the    result    is    ad- 

392;    Bristow   v.    Bristow,    5   Beav.  vantageous     to    the    legatee."       De 

289;   Johnstone  v.   Harrowly,   1   De  Laveaga's  Estate,  119  Cal.  651. 

G.  F.  &  J.   183;   29  L.  J.  Ch.   145;  37  De   Laveaga's   Estate,   119  Cal. 

6  Jur.    (N.  S.),   153;    1   L.  T.   390;  651;   Whelan's  Estate,   175   Pa.   St. 

8  W.  R.  105;  De  Laveaga's  Estate,  23. 

119  CaL  651;   Tilden  v.  Tilden,   13  38  Buehler's  Appeal,   100  Pa.    SL 

Gray,    103;    Buehler's    Appeal,    100  385. 

P(a.  St.  385 ;   Hollyday  v.  Hollyday,  39  Hollyday  v.   Hollyday,   74   Md. 

74   Md.   458;    Hard   v.    Ashley,    117  458.      In   this   case  the   codicil   pro- 

N.  Y.  606;    Fife  v.  Miller,   165  Pa.  vided:      "I    do    hereby    revoke    said 

St.   612;    Whelen's  Estate,   175   Pa.  legacy,  and  instead  of  four  thousand 

St.  23.  dollars    I    hereby   give   to   my   said 

"A    substitutional    or    additional  sister,  at  my  death,  three  thousand 

legacy   is   prima   facie   payable   cnit  dollars."     The  claim  was  made  that 

of  the'  same   funds,   and   subject  to  this  was  an  independent,  and  not  a 

the   same    incidents    and    conditions  substitutional,  gift;     but  the  court 


950  LAW     OF     WILLS. 

a  bequest  is  specifically  given  as  additional  to  one  already 
made,  the  additional  bequest  is  held  to  be  upon  the  same  con- 
tingencies as  the  original  one,  if  such  construction  will  not 
cause  inconsistencies  in  the  will.'*'^  Where,  however,  a  subse- 
quent gift  is  not  properly  substitutional,  but  is  made  by  reason 
of  a  failure  or  revocation  of  a  preceding  gift,  it  will  not  be  pre- 
sumed that  the  latter  gift  was  upon  the  same  conditions  as  the 
earlier  one.  Thus,  where  testator  bequeathed  property  to  a 
granddaughter,  to  be  paid  upon  her  arrival  at  majority,  and 
she  subsequently  died,  and  in  a  codicil  executed  afterwards  tes- 
tator gave  the  same  amount  to  another  granddaughter,  a  sister 
of  the  deceased,  it  was  held  that,  not  being  a  case  of  substitu- 
tion, it  was  not  presumed  to  be  upon  the  same  conditions.^^ 

held  it  to  be  a  substitutional   gift,  codicil  provided,  "I  hereby  alter  that 

with    all    the    incidents    of    the    or-  part  of  my  will  ...  so  that  it  shall 

iginal.     A   similar  view  was   taken  read    that    my    son-in-law,    Samuel 

in  Hard  v.  Ashley,   117  N.  Y.  606,  Fife,  instead  of  only  having  a  life 

where  the  will  gave  A  a  life  estate  estate  in  it,  shall  possess  it  as  his 

with  remainder  to  her  children,  and  own,   without   let  or   hindrance,"   it 

the  codicil  revoked  the  devise,  and  was   held   that   the   son-in-law   took 

o-ave  a  legacy  to  "A  and  her  heirs  a   fee   upon   the   same   contingencies 

in  lieu  of  the  original  gift."     This  as  he  would  have  taken  the  life  es- 

was  held  to  be  a  substitutional  leg-  tate,  namely,  upon  the  death  of  his 

aey,  the  word  "heirs"  being,  under  wife  without  children.     Fife  v.  Mil- 

the  circumstances,  synonomous  with  ler,   165   Pa.  St.  612. 

"children,"  and  A  taking  a  life  es-  4o  Thompson  v.  Churchill,  60  Vt. 

tate  only.     So,  where  by  will  a  life  371. 

estate  was  given  to  one  in  case  his  *i  Fry's  Estate,  163  Pa.  St.  30. 
wife  died  without  children,  and  the 


LAW     OF     WILLS.  951 


CHAPTER  XXXIX. 

RIGHTS  OF  DEVISEES  AND  LEGATEES  TO  THE  ENJOY- 
MENT OF  PROPERTY  GIVEN  BY  WILL. 

§801.     Payment  of  legacies. 

The  question  when  a  legacy  given  by  will  is  payable  is  a 
topic  on  the  border-line  between  the  law  of  wills  and  the  settle- 
ment of  decedent's  estate,  but,  as  it  is  affected  by  the  nature 
of  testator's  will,  it  will  be  discussed  in  this  connection.  That 
a  legatee  has  no  interest  in  the  legacy  during  the  life  of  the 
testator  is  almost  too  elementary  for  mention.^  L^der  most 
systems  of  law  for  settling  decedents'  estates,  a  legatee  can  not 
enforce  the  payment  of  his  legacy  out  of  debts  due  testator's 
estate.  Payment  can  be  enforced  only  by  means  of  an  execu- 
tor 


2 


§802.     Where  time  is  fixed  by  will. 

If  testator  provides  specifically  in  his  will  at  what  time  a 
legacy  is  to  be  paid,  this  direction  will  be  enforced,  provided,  of 
course,  it  is  not  in  violation  of  the  rule  against  perpetuities. 
Thus,  testator  may  devote  part  or  all  of  his  property  to  the  sup- 
port of  a  designated  person  for  life,  and  may  provide  either  ex 
pressly  or  impliedly  that  other  legacies  given  by  will  shall  not 

1  Hart  V.  West,  16  Tex.  Civ.  App.  -'  Nicholson    v.    Commissioners    of 

30.5.  Dare  County.  119  X.  Car.  20. 


952  LAW     OF     WILLS. 

be  payable  until  the  death  of  the  life  tenant.^  Thus,  where  tes- 
tator devised  his  estate  to  his  wife  for  life,  subject  to  the  an- 
nual support  of  certain  designated  grandchildren,  and  further 
devised  his  land  to  one  grandchild  and  specific  legacies  to  other 
grandchildren,  it  was  held  that,  although  the  time  for  paying 
such  legacies  was  not  specifically  stated,  they  were  clearly  not 
payable  until  the  termination  of  the  life  estate.^  In  such  case 
the  fund  can  not  be  distributed  until  the  death  of  the  life  ten- 
ant.^ 

Where  a  legacy  is  payable  after  a  life  estate,  it  is  often  difii- 
cult  to  determine  what  is  the  effect  of  the  cessation  of  the  life 
estate  before  the  death  of  the  life  tenant.  Where  the  will  shows 
that  the  payment  of  the  legacy  is  postponed  till  the  death  of  the 
life  tenant  simply  by  reason  of  the  creation  of  the  life  estate, 
the  legacy  is  held  payable  upon  the  determination  of  the  life 
estate,  before  the  death  of  the  life  tenant.^  Thus,  where  a 
widow  refuses  to  take  a  life  estate,  and  elects  to  take  under  the 
law,  legacies  whose  pa;\Tuent  was  postponed  merely  in  order  to 
provide  for  the  life  estate  become  payable  at  onceJ  But, 
where  testator  expressly  makes  the  legacy  payable  upon  the 
death  of  the  life  tenant,  the  payment  of  such  legacy  is  not  ac- 
celerated by  the  determination  of  the  life  estate  before  the 
death  of  the  life  tenant.^  Where  a  legacy  is  given  in  such  terms, 
neither  the  renunciation  of  the  life  estate,^  nor  its  conveyance 
to  the  remainder-man,^'^  nor  the  re-marriage  of  the  widow  to 

3/»   re    Tredwell    (1891),    2    Ch.  e  Trustees  of  Church  Home,  etc., 

640;   Johnson  v.  Webber,   65  Comi.  v.   Morris,  —  Ky.   —    (1896);     36 

501 ;    De  Vaughn  v.  McLeroy,  82  Ga.  S.  W.  2 ;    Hall  v.  Smith,  61  N.  H. 

687;  Harvey  v.  Miller,  95  Ga.  766;  144. 

Bowling    V.    Miller,    133    Ind.    602;  7  Trustees  of  Church  Home,  etc., 

McChord  v    Caldwell,  96  Ky.  617;  v    Morris,   —   Ky.   —    (1896);    36 

Southworth    V.    Sebree,    —   Ky.    —  S.  W.  2 ;    Hall  v.  Smith,  61  N.  H. 

(1897);   41   S.  W.  769;   Lindsay  v.  144. 

Zanoni,    6   O.    C.   C.    474;    Hubert's  »In    re    Tredwell     (1891),    2    Ch. 

Estate,   181   Pa.   St.   551;   Lazier  v.  640;    Ford  v.  Krarabeer,  92  lo.  521; 

Lazier,    35   W.   Va.    567.  Lovell  v.  Charlestown,  66  N.  H.  584, 

4  McChord   y.    Caldwell,    96   Ky.  9  Lovell  v.  Charlestown,  66  N.  H 
617.  584. 

5  Johnson    v.    Webber,    65    Conn.  lo  Ford  v.  Krambeer,  92  lo.  521. 
501;    Hubert's   Estate,    181   Pa.   St. 

551. 


LAW     OF    WILLS. 


953 


whom  a  life  estate  had  been  given,  provided  she  remained  tes- 
tator's widow,^^  will  hasten  the  time  for  the  payment  of  the 
legacy. 

So,  where  testator  provides  that  a  certain  legacy  shall 
be  paid  to  the  beneficiary  upon  his  arrival  at  majority,  or  some 
other  specified  age,  the  legacy  is  payable  at  the  time  fixed.^^ 
A  provision  that  certain  legacies  are  to  be  paid  "whenever 
the  youngest  child  of  any  daughter  in  being  at  my  decease  shall 
have  reached  the  age  of  twenty-one  years"  was  held  to  be  pay- 
able when  the  youngest  grandchild  of  testator  reached  the  age 
of  twenty-one.-^  ^  In  case  of  the  death  of  the  beneficiary  before 
reaching  such  age,  the  legacy,  if  vested,  is  payable  at  once  to 
his  administrator.^^  So  the  bankruptcy  of  the  legatee  may 
make  the  legacy  payable  at  once.-^^ 

Testator  may,  for  purposes  of  preservation  of  his  estate,  pro- 
vide for  keeping  it  intact  for  a  certain  period.  Where  such  a 
provision  is  made,  legacies  are  not  payable  until  the  expira- 
tion of  such  period.^ ^  Testator  may  also  make  a  legacy  pay- 
able upon  demand  of  the  legatee.^'^  And,  where  testator  made 
a  legacy  payable  when  legatee  was  eighteen  years  of  age,  or 
when  she  was  of  competent  age  to  choose  a  guardian,  or  when 
she  married,  it  was  held  to  be  payable  upon  demand  of  the 
guardian  chosen  by  her  upon  arriving  at  the  age  of  fourteen.^ ^ 
Where  testator  provides  that  a  legacy  shall  be  payable  at  a 
given  time,  the  pa^^ment  can  not  be  postponed  merely  because 
payment  at  such  time  will  be  inconvenient  for  the  estate.^  ^ 
Thus,  where  an  annuity  was  payable  on  the  first  of  April  of 
each  year,  and  made  a  lien  upon  certain  real  estate  specifically 

ii/?i  re  Tredwell    (1891),   2   Ch.  "  McReynolds   v.   Graham,   43   S. 

640.  W.  138;   (Tenn.  Ch.  App). 

12  Stein  V.  Gordon,  92  Ala.  532  •,  is  Sanford  v.  Lackland,  2  Dill.  6. 
Fair's  Estate,  103  Cal.  342;  Cline  is  Fogarty  v.  Fogarty,  22  Can. 
V.  Scott  (Ky.  1896),  32  S.  W.  215;  S.  C  103;  Seawright's  Estate,  163 
Kuykendall    v.    Devecmon,    78    Md.  Pa.  St.  218. 

537;    In   re   Beilstein,    147    Pa.    St.  "Smith   v.   Jackman,    115   Mich. 

85;    Arnold   v.    Arnold,   41    S.   Car.  192:    Martin's   Estate,    178   Pa.    St. 

291.  416. 

13  Robinson  v.  Greene,  17  R.  I  is  Probate  Judge  v.  Page,  61  N. 
771.      (The  words  "in  being"  were  H.    500. 

held  to  refer  to  "child"  not  "daugh-  i9  Cray  v.   Herder,  46   N.   J.   Eq. 

ter,"  distribution  in  case  of  doubt       416. 
beinff    made   at    the    earliest    date.) 


954  LAW    OF     WILLS. 

devised,  it  was  held  that  the  payment  of  a  legacy  could  not  be 
postponed  until  the  harvesting  of  the  annual  crops.^°  But, 
where  the  v/ill  gives  to  a  legatee  a  vested  and  absolute  interest 
in  the  fund,  and  the  pa^mient  of  such  legacy  is  postponed  for 
the  period  beyond  his  majority,  no  intermediate  estate  inter- 
vening, it  is  held  by  some  very  eminent  authorities  that  the  di- 
rection postponing  payment  is  repugnant  to  the  gift  of  the  ab- 
solute interest,  and,  accordingly,  such  legatee  has  a  right,  on 
reaching  majority,  to  demand  and  receive  the  legacy.^^ 

A  gift  may  be  made  payable  personally  to  the  legatees  even 
though  they  are  not  of  age.^^ 

Where  the  will  provides  that  the  income  of  the  estate  is  to 
be  accumulated  by  the  executor  until  sufficient  to  pay  the  debts 
and  legacies,  it  is  held  that  the  legatee  has  no  right  to  bring 
suit  to  collect  such  legacy  until  it  is  evidence  that  the  income 
will  not  be  sufficient  for  such  purpose  in  any  "reasonable 
time."^'''  While  ordinarily  a  legacy  payable  to  a  class,  which 
may  include  those  after  born,  is  not  payable  until  the  possi- 
bility of  such  subsequent  issue  is  in  law  extinct  by  the  death  of 
the  parent,  it  has  been  held  that  such  legacy  may  be  paid  where 
the  woman  whose  issue  are  the  beneficiaries  is  past  the  age  of 
childbearing.^^ 

§803.     Rule  where  the  will  does  not  fix  the  time  of  payment. 

Where  the  will  does  not  specifically  fix  the  time  at  which  the 
legacies  are  to  be  paid,  their  payment  is  not  delayed  by  the  crea- 
tion of  trusts  or  other  interests  by  will  except  in  case  where,  by 
the  very  terms  of  the  will,  the  legacy  can  not  be  paid  until  the 
trust  determines.^^ 

The  law  fixes  a  time  for  the  payment  of  legacies  which  is 
presumably  sufficient  to  enable  the  personal  representative  to 
collect  the  assets  of  the  estate  and  to  determine  what  legacies, 

20  Cray  v.  Herder,  46  N.  J.  Eq.  23  Cronan  v.  Holland,  19  R.  T. 
416.  368;  .36  Atl.  92:  33  Atl.  872. 

21  Rocke    V.    Rocke,    9    Beav.    66 ;  24  Male  v.  Williams,  48  N.  J.  Eq. 
Dado's    Estate,    71    Mo.    App.    641;  33.   Compare   Sec.   677. 
Randolph  v.  Randolph,  40  N.  J.  Eq.  25  Thyng  v.  Moses,   65  N.   H.   56. 
73.  Brown  v.  Lippincott,  49  N.  J.   Eq. 

22 /n  re  Deneken,  13  Reports,  294.        44. 


LAW    OF    WILLS.  955 

if  any,  must  abate.  At  common  law,  and  by  the  statutes  of 
many  states,  the  time  for  payment  of  legacies,  where  the  will 
did  not  provide  specifically,  is  fixed  at  one  year  from  the  death 
of  testator.2^  Q^t^e  statutory  rule  is  so  firm  in  some  jurisdic- 
tions that  even  a  direction  that  the  executors  are  not  to  pay  the 
legacies  "until  such  time  as  it.  may  be  practicable  to  do  so,  hav- 
ing regard  to  the  beneficial  management  of  my  said  estate," 
does  not  postpone  the  time  of  paying  legacies  beyond  that  fixed 
by  statute.^^  In  other  jurisdictions  the  time  fixed  for  the  pay- 
ment of  legacies  by  statute  is  different  from  that  fixed  by  the 
common  law  rules;  the  same  principles,  however,  apply.  It 
has  been  held,  however,  where  the  will  does  not  fix  a  time  for 
i^ayment,  tliat  the  legacy  is  payable  in  a  reasonable  time  after 
testator's  death.^^ 

Two  exceptions,  however,  are  generally  recognized 
to  the  rule  making  legacies  payable  a  year  after  the 
death  of  testator.  The  first  exception  is  that,  if  the  testator  by 
will  has  given  annuities,  the  time  for  the  payment  of  these  an- 
nuities begins  at  the  death  of  testator.^^  Where  testator  spe- 
cifically bequeathed  the  income  of  a  certain  fund  to  a  named 
legatee,  in  the  absence  of  anything  in  the  will  to  show  a  con- 
trary intent,  this  passes  the  income  of  the  fund  from  the  death 
of  tiie  testator.30  ^^^^  ^^^^^  exception  is,  that  a  legacy  for  tes- 
tator's infant  children,  for  whom  no  other  provision  is 
made  in  the  will,  bears  interest  from  testator's  death,  though 
its  payment  may  necessarily  be  postponed  pending  the  settle- 
rs Williams'  Estate,  112  Cal.  521,  44  ciety,  50  O.  S.  1 ;  Gray  v.  Case  School, 
Pac.  808;  Kent  v.  Dunham,  106  Mass.        62  O.  S.  1.  ,,„   ^  ,     ^oi 

586-    Welch  V.  Adams,  152   Mass.  74;  ^^  Williams'    Estate,    112   Cal.,  521; 

Ash'ton  V.  Wilkinson,  53  X.  J.  Eq.  227 ;       44  Pac.  808. 

Flummerfelt  v  Flummcrfelt,  51  X.  J.  28  Moore  v.  Moore  (N.  H.)    (1899) 

Eq.  432;  Eichelberger's  Estate,  170  Pa.        45  Atl.  233. 

St.   242;    Huston's    Appeal,   9  Watts.  29  In   re  Williams,   64   L.   J.   Ch. 

(Pa.)  472;  Sear's  Estate,  18  Utah  193.  -j^_  g_  349.  Welch  v.  Brown,  14  Vr. 

By  some  Statutes  the  time  for  paying  ^-^^  j_^^  37.  Eichelberger's  Estate, 
legacies  is  fixed  at  a  year  from  tht  ^„^  p^^  g^_  242;  Eyre  v.  Golding, 
issuing  of  letters  testamentary.  In  re  _  ^.^^"  ^^  ^^^_  Curran.  v.  Green. 
McGowan,  124  N.  Y.  526;  Thorn  v.  '  j,  x.  'y  329.  Sear's  Estate,  18 
Garner,     113     N.    Y.     198;     Davis    v.        J^    *"•      „ 

(Vandell    101   X.  Y.   311;  or  from  the        ^^^^'   ^'^''-  c    A^r.    n 

d^  of  the  notice  of  the  appointment  30  McLane  v.  Cropper,  5  App.  D. 

of  an  executor.     Webster  v.  Bible  So-       C.  276. 


956  LAW   or   WILLS. 

ment  of  the  estate.^^  Where  the  will  is  ambiguous  as  to  which 
of  two  funds  is  charged  with  the  education  of  children,  it  will 
be  held  to  be  the  fund  available  immediately,  and  not  one  avail- 
able only  after  a  life  estate  of  twenty  years  expectancy.^^ 

Even  before  the  time  of  the  payment  of  the  legacy  a  legatee 
may  have  a  sum  sufficient  to  pay  such  legacy  set  apart  for  its 
payment,^^  and  so  an  annuitant  is  entitled  to  have  a  sum  retain- 
ed upon  the  general  distribution  sufficient  to  pay  the  annuity.^'' 
But  an  annuity  charged  on  a  particular  fund,  the  deficiency, 
if  any,  to  be  made  up  out  of  the  residuum,  can  not  operate  to 
postpone  the  payment  of  other  legacies,  even  if  testator  has  dis- 
posed of  his  entire  estate.^^ 

§804.     Interest  upon  legacies. 

A  legacy  draws  interest  as  between  legatees  and  the  estate  of 
the  decedent  from  the  time  when  it  becomes  payable,  in  the  ab- 
sence of  anything  in  the  will  to  show  that  testator  entertained 
a  different  intent."**  But,  if  testator's  intention  as  to  the  date 
from  which  the  legacy  is  to  bear  interest  can  be  determined, 
this  is  paramount.^^  So  a  gift  to  trustees  to  retain  for  three 
years,  if  they  saw  fit,  and  to  hold  in  trust  for  such  persons  as 
testator  might  appoint  by  will,  carries  interest  from  the  death 
of  testator.^  ^ 

31  Flummerfelt     v.     Flummerfelt,  ^4  Jn  re  Bates,   159  Mass.   252. 

51  N.  J.  Eq.  432;  Marsh  v.  Taylor,  35  Morse  v.  Macrum,  22  Ore.  229. 

16  Stew.  Eq.  1 ;   Stout  v.  Stout,  17  36  Cline     v.     Scott,     —     Ky.     — 

Stew.    479;    Davison    v.    Rake,    17  (1896),    32    S.    W.    215;    Kent    v. 

Stew.  506.  Durham,    106    Mass.    586;    Ashton 

However,    where)    the    legacy    Is  v.    Wilkinson,    53    N.    J.    Eq.    227; 

given  in  pursuance  of  an  ante-nup-  Adams  v.  Adams,  55  N.  J.  Eq.  42; 

tial   contract   by   which   the   widow  35   Atl.   827;    Webster  v.   Bible  So- 

was    to    receive    $4,000    in    lieu    of  ciety,    50    O.    S    .1;    Gray    v.    Case 

dower    within    a    reasonable!    time  School,    62   O.    S.    1;    Langhrost   v. 

after   testator's   death,   it  was  held  Ahlers,    7    Ohio    N.    P.    40;    Eichel- 

that   such   legacy   was   not   payable  berger's    Estate,    170    Pa.    St.    242; 

and   did   not   bear   interest   until   a  Koon's    Estate,    113    Pa.    St.    621; 

reasonable   time,   which   by  analogy  Webster    v.    Wiggin,    19    R.    I.    73: 

was    held    to    be    one    year.      Krig-  35  Atl.  961. 

baum  V.  Southard,  23  W.  L.  B.  438.  3^  Loring   v.    Massachusetts    Hor- 

azThurber   v.   Battey,    105   Mich.  ticultural    Society,    171    Mass.   401; 

71g,  Yost's    Estate,     134    Pa.    St.    426. 

33  Leslie   V.    Moser,    62    111.    App.  38  Loring   v.   Massachusetts    Hor- 

555^  ticultural    Society,    171    Mass.    401. 


LAW     OF     WILLS.  957 

A  legacy  payable  at  any  time  in  executor's  discretion  before 
the  distribution  of  testator's  estate,  given  to  equalize  the  bene- 
ficiaries' share  with  that  of  others  who  had  secured  advance- 
ments from  testator,  which  sum  was  to  equal  the  advancements 
without  interest,  does  not  bear  interest.^^ 

While  legacies  ordinarily  become  due  and  bear  interest  a  year 
after  testator's  death,  they  do  not  bear  interest  from  that  date  if 
they  are  payable  subsequently.^"  Accordingly,  where  testator 
gave  certain  conditional  legacies,  and  provided  that  the  legatees 
should  notify  the  executors  of  their  acceptance  within  six  months 
after  the  receipt  of  notice  from  the  executors,  and  executors  de- 
layed sending  the  notice  for  more  than  a  year  after  testator's 
death,  and  the  legatee  accepted  within  six  months  thereafter,  it 
was  held  that  the  legacy  bore  interest  from  the  year  after  testa- 
tor's death,  and  not  from  the  time  of  the  acceptance  of  the 
legacy.  ^^ 

Where  the  property  has  been  surrendered  either  to  the  re- 
mainder-mien, residuary  legatees,  and  the  like,  it  is  held,  how- 
ever, that  they  can  not  be  charged  with  interest  for  legacies 
payable  out  of  the  property  which  they  have  received,  unless 
demand  is  made  of  them  for  such  payment.^ ^  Where,  at  the 
time  for  paying  the  legacies,  contest  proceedings  are  pending, 
and  on  that  account  the  executor  withholds  payment  of  lega- 
cies, it  is  often  questioned  whether  the  legatee  can  recover  in- 
terest upon  the  legacies  thus  withheld.  On  this  point  there 
seems  to  be  a  decided  difference  of  judicial  opinion.  In  some 
jurisdictions  it  is  held  that  no  interest  can  be  recovered  upon 
the  legacies  until  the  date  at  which  the  contest  is  decided."*^  In 
other  jurisdictions  it  is  held  to  be  the  duty  of  executors  to  pay 
the  legacies  if  proper  security  is  given  to  him  for  the  repay- 
ment of  the  same  in  case  the  contest  is  decided  adversely  to  the 
will.  This  question  depends  largely  upon  the  wording  and  con- 
struction of  local  statutes  for  the  settlement  of  decedents'  es- 


39  Brooks   V.   Hanna,    19   Ohio   C.  *'^  Adams  v.  Adams,  55  N.  J.  Eq. 

C.  216.  42;    35    Atl.    827;    Gilbert   v.    Tay- 

"Cline   V.    Scott    (Ky.)     (1896),  lor,   148   N.  Y.  298. 

32  S.  W.  215.  43  Trustees  of  Church  Home,  etc. 

■41  Webster    v.    Wiggin.    19    R.    I.  v.  Morris,  Ky.    (1896),  36  S.  W.  2. 
73;   35  Atl.  961. 


958  LAW    OF     WILLS. 

tates.  An  executor  is  not  justified  in  refusing  to  pay  legacies 
on  account  of  a  rumor  that  some  one  in  existence  claimed  to 
be  testator's  wife.^* 

§805.     Right  of  devisees  to  possession  of  realty. 

The  right  of  a  devisee  to  the  possession  of  the  realty  devised 
rests  upon  principles  which  have  already  been  discussed. 
Under  modern  statutes,  in  most  jurisdictions,  a  devisee  can  not 
assert  any  title  to  realty  until  the  will  has  been  admitted  to 
probate.'*^  After  the  will  has  been  admitted  to  probate,  the 
right  of  the  devisee  to  the  possession  of  the  realty  is  in  the  first 
instance  dependent  upon  whether  such  realty  is  necessary  for 
the  payment  of  the  debts  of  testator,  taken  in  the  order  in  which 
the  law  or  the  will  directs  testator's  property  to  be  taken  for 
his  debts.^^  If  the  realty  devised  is  not  necessary  for  the  pay- 
ment of  testator's  debts,  the  right  of  the  devisee  to  the  posses- 
sion of  such  realty  depends  upon  testator's  intention  as  ex- 
pressed in  the  will.^"^ 

44  Eichelberger's   Estate,    170   Pa.  46  See  Sec.  777. 

St.  242.  47  See  Chapt.  XXXI. 

45  See  Sec.  313. 


LAW    or     WILLS.  9^^ 


CHAPTER  XL. 

SUITS  TO  CONSTRUE  WILLS. 

§806.     When  suits  to  construe  will  lie. 

In  their  origin,  suits  to  construe  wills  were  equitable  in  their 
nature,  and  were  necessary  consequence  of  the  general  power 
of  equity  to  manage  and  control  trusts  and  to  direct  the  con- 
duct of  trusts  when  such  direction  was  sought.  In  many  juris- 
dictions this  principle  is  still  in  force,  and  a  construction  of  a 
will  can  be  sought  only  when  necessary  in  directing  the  conduct 
of  the  trustee  or  some  one  acting  in  a  general  trust  capacity.' 
And  where  this  principle  is  in  force,  equity  will  not  construe 
a  will  in  which  no  trust  is  created,  simply  because  of  the  un- 
certainly of  the  devisees.^ 

In  some  jurisdictions,  however,  equity  will  entertain  suits 
to  construe  wills  irrespective  of  the  existence  of  a  trust.^  In 
other  jurisdictions  the  right  of  bringing  a  suit  to  construe  a 
will  has  been  extended  by  statute.     Thus  it  is  provided  under 

iBonnell    v.    Bonnell,    47    N.    J.  v.  Torrey,  55  N.  J.  Eq.  410;  Edgar 

Eq    540;  Torrey  v.  Torrey,  55  N.  J.  v.  Edgar,  26  Ore.  65. 

Eq   410;  Bailey  V.  Briggs,  56  N.  Y.  3  Becton    v.    Alexander,    27    Tex. 

407;    Chipman   v.   Montgomery,    63  659;   Hawes  v.   Foote,   64  Tex.  22; 

N   Y   221 ;  Dill  v.  Wisner,  88  N.  Y.  Groesbeck    v.    Groesbeck,    78    Tex. 

^gg    '     "    '  664;  Crosson  v.  Dwyer,  9  Tex.  Civ. 

2  Minkler  v.  Simons,  172  111.  323,  App.  482. 
reversing  71   111.  App.  462;   Torrey 


960 


LAW    OF    WILLS. 


some  statutes  that  a  widow,  before  making  her  election,  may 
bring  suit  to  have  her  rights,  under  the  will,  determined  by 
a  court  of  equity. 

Leaving  the  subject  of  the  court  in  which  the  suit  must  be 
brought  for  the  following  section,  it  must  be  observed  that 
under  the  general  equity  rules  a  bill  may  be  filed  to  construe 
an  ambiguous  or  doubtful  \^all  under  proper  circumstances.^ 
But  where  the  will  is  plain  and  unambiguous  upon  its  face, 
equity  courts  will  not  entertain  a  suit  to  construe,  and  will  not 
charge  the  costs  against  the  estate,  but  will  dismiss  such  a 
bill  at  the  costs  of  the  plaintiff.^ 

Equity  will  not  entertain  a  suit  to  construe  a  will  in  order 
to  answer  merely  abstract  questions  f  nor  will  equity  determine 
questions  not  then  necessary  to  direct  the  conduct  of  the 
trustee.'^  Thus  an  administrator  with  the  will  annexed  can  not 
ask  questions  as  to  his  power  to  sell  real  estate,  and  appropri- 
ate the  proceeds  to  the  use  of  the  life  tenant,  where  the  life 
tenant  has  not  asked  for  the  sale  ;^  and  equity  will  not  in- 
struct a  trustee  as  to  a  future  event  which  may  or  may  not  take 
place.^  Thus  equity  Avill  not  construe  a  will,  ordinarily,  to 
determine  the  nature  of  a  remainder  during  the  life  of  the 
life  tenant.^'' 


4  Caroll  T.  Richardson,  87  Ala. 
605;  Stevens  v.  Dewey,  55  N.  J. 
Eq.  232. 

5  Baxter  v.  Baxter,  43  N.  J.  Eq. 
82;  Mellen  v.  Mellen,  139  N.  Y. 
210;  Hollister  v.  Hcwe,  6  O.  Dec, 
157;  4  O.  N.  P.  168. 

6  Siddall  V.  Harrison,  73  Cal.  560. 
'  May  V.  May,  5  App.  D.  C.  552 : 

Fahy  v.  Fahy  (N.  J.),  42  Atl. 
726;  Tyson  v,  Tyson,  100  N.  C. 
360. 

8  Security  Co.  v.  Pratt,  65  Conn. 
161. 

9  Bullard  v.  Att.  Gen.,  153  Mass. 
249 ;  Griggs  v.  Veghte,  47  N.  J.  Eq. 
179;  Traphagen  v.  Levy,  45  N.  .F. 
Eq.    448.      It    has    been    said    that 


even  if  such  decree  were  rendered, 
it  would  not  be  binding.  Meacham 
v.  Graham,  98  Tenn.  190, 

10  Stumpenhousen's  Estate,  108 
la.  555;  Wethered  v.  Safe  Deposit 
&  Trust  Co.  79  Md.  153;  Minor  v, 
Taylor,  129  Mass.  160;  Heald  v. 
Heald,  56  Md.  300;  Devecmon  v. 
Shaw,  70  Md.  219;  Woods  v.  Ful- 
ler, 61  Md.  457  ;  Powell  v.  Demming, 
22  Hun,  2.35  (N.  Y.)  ;  Hayday  v. 
Hayday  (N.  J.),  .39  Atl.  373;  Morse 
V.  Lyman,  64  Vt.  167;  Blair  v. 
Johnson  64  Vt.  598;  Well's  Estate, 
69  Vt.  388:  Schinz  v.  Schinz,  90 
Wis.  236:  2  Pom.  Eq.  Jur.  {2nd 
Ed.)     1157. 


LAW     OF     WILLS.  *'"■*• 

An  additional  reason  for  refusing  sucli  constmction  is  that 
If  remainders  may  pass  by  purchase  to  persons  not  ascer- 
tained at  the  time  of  the  bringing  of  suit,  the  rights  of  such 
persons  can  not  be  determined  in  the  suit." 

As  a  court  of  equity  will  only  advise  a  trustee  as  to  his 
conduct  in  the  -immediate  future,  he  ordinarily  can  not  main- 
tain a  suit  to  determine  what  has  been  the  effect  of  a  distribu- 
tion made  by  him.^-     But  where  the  immediate  conduct  of  an 
executor  or  a  trustee  will  be  determined  by  the  construction  of 
the  will,  the  court  Avill  entertain  an  action  to  construe.     Thus 
where  a  will  directs  that  the  husband  of  testator  shall  not  be 
required   to  pay  more  of  his   debts  to  her  estate   than   such 
annual  payments  as  \\all  stop  the  statute  of  limitations  from 
running,  the  legatees  may  receive  instructions  from  a  court  of 
equity  as  to  their  conduct  with  reference  to  such  debts.^^     So 
where  executor  has  assets  in  his  hands  which  he  is  ready  to 
distribute,^-'   or  where  on  construction  of  the  will,   is  ])0und 
to  sell  land  at  once  to  pay  a  legacy ,i^  he  may  file  a  bill  to  ob- 
tain instruction. 

Where  the  present  conduct  of  the  executor  or  trustee  is  af- 
fected by  the  nature  of  the  remainder  after  the  life  interest, 
he  may  have  the  nature  of  such  remainder  construed.^  ^^ 

Where  questions  concerning  which  construction  is  sought 
do  not  impose  any  duty  upon  the  executor  or  trustee,  and  per- 
tain exclusively  to  the  question  of  legal  title  passed  by  the  will 
as  between  a  devisee  and  an  heir,  or  as  between  two  or  more 

iiTrapha!?en   v.   Levy,    45   N.    J.  a    right    to    a    bequest    absolutely, 
Eq.  448;   Montignani  v.  Blade,  145  while    other    legatees    claimed    they 
N.  Y.   Ill;   Ward  v.  Ward,  95  Ala.  had  a  contingent  remainder  in  such 
331-10  So.  832.  legacy.      The   latter   claimants   con- 
12  Miles  V.  Strong,  00  Conn.  393;  tended   that   the   executor   was   per- 
Littl'e  V.  Thorne,  93  N.  C.  09.  sonally    responsible    for    the    pay- 
is  Miller    V.    Drane,    100    Wis.    1.  ments  which  he  had  made  already 
i4Balsley   v.    Balsley,    116   N.   G.  to    the    first    taker    of    the    legacy, 
,.,(,              "  and   that   he   should   make   no   fur- 
is  Van  Gioson  V.  White,  53  N.  J.  ther  payments  without  taking  bond 
-p,         '  for     the     repayment     of     the    fund 
'^leMeacham  v.  Hraham,  98  Tenn.  upon   the  happening  of  the  eontin- 
190;  39  S.  W.  12.  f'^c'icy. 
In   this   case  one  legatee   claimed 


962 


LAW    OF    WILLS. 


antagonistic  devisees,  equity  will  not  generally  entertain  a 
suit  to  construe  a  will,  but  will  leave  the  adversary  parties  to 
their  remedies  at  law.^^  In  such  case  the  court  will  not  as- 
sume jurisdiction,  because  the  suit  was  brought  by  an  ex- 
ecutor, where  he  has  not  been  charged  with  any  duties  in  refer- 
ence to  such  estate.^  ^ 

However,  where  the  facts  are  such  that  no  adequate  remedy 
can  be  had  at  law,  as  where  the  devisee  is  in  possession  under 
a  devise  which  clearly  gives  him  a  life  estate,  and  the  dis- 
pute is  as  to  the  remainder,  equity  in  the  exercise  of  its  juris- 
diction of  entertaining  suits  to  quiet  title  may,  as  incidental 
to  such  relief,  construe  the  will  under  which  devisee  claims/^ 

Whether  equity  can  pass  upon  the  force  and  effect  of  instru- 
ments executed  after  the  will  either  by  testator  or  by  benefi- 
ciaries in  an  action  to  construe  a  will,  is  a  question  upon 
which  the  authorities  are  at  variance.-*^ 


17  Minkler    v.     Simons,     172    111 
323,    reversing    71    111.    App.    462 
Peverly  v.  Peverly,  173  Mass.  203 
Austin    V.    Bailey,    1G3    Mass.    270 
Torrey    v.    Torrey,    55    N.    J.    Eq 
410;    Kennedy  v.  Merrick,  46  Nob 
260;  Kelley  v.  Kelley,  80  Wis.  486 
In   Austin   v.    Bailey,    163   Mass 
270,   which   was   an   action   by   one 
who  claimed  a  devise  to  determine 
his   title   to   certain   real   estate   as 
against    the    heirs,    the    court    ex- 
pressed it  reasons  for  dismissing  the 
petition   without   a   decision   on   its 
merits   in   the   folloAving   language: 
"It  is  plain  that  this  is  not  a  case 
in    which    the    petitioner    has    any 
duty  to  perform  under  the  will   in 
which  he  needs  the  instructions  of 
the  court  as  to  anv  duties  arising 
in  the  administration  of  the  estate 
of  Jane  Manning.  So  far  as  appears 
the   dispute  does  not,   in   any  way. 
concern   the   administration    of   the 
estate.      See    Healy    v.    Reed,     153 
Mass.   197.     The  whole  question  in 
the   case  relates   to   the   extent   of 
the  title  of  the  parties  to  the  real 


estate  of  which  respondent  is  in  pos- 
session. Both  parties  receive  their 
titles  from  Jane  Manning,  but  this 
does  not  entitle  either  to  ask  this 
court  by  petition  for  instruction 
upon  the  proper  construction  of 
the  will.  .  .  .  The  true  remedy  of 
the  petitioner  is  by  right  of  entry 
in  the  trial  of  which  it  would  be 
necessary  to  determine  the  meaning 
of  this  article  of  the  will."  In  this 
case,  however,  Avhile  the  court  re- 
fused to  render  any  decision  as  to 
the  construction  since  the  question 
was  fully  argued,  and  all  the  par- 
ties in  interest  were  before  the 
court,  it  expressed  its  opinion  in 
such  terms  as  to  obviate  the  ne- 
cessity of  future  litigation. 

18  Miles  v.  Strong,  60  Conn.  393 ; 
Torrey  v.  Torrey,  55  N.  J.  Eq.  410. 

19  Ewing  v.  Barnes.  156  111.  61 ; 
Pennington  v.  Pennington,  70  Md. 
418:  3  L.  R.  A.  816. 

20  In  Lenz  v.  Prescott.  144  Mass. 
505,  equity  took  jurisdiction  upon 
the  ground  that  one  of  the  questions 
involved  was  an  assignment  by  leg- 


LAW     OF     WILLS.  963 

§807.     Jurisdiction  of  courts  in  actions  to  construe  a  will. 

State  courts  of  general  equity  powers  are  the  tribunals  before 
which  the  construction  of  the  domestic  will  should  be 
brought.  ^^ 

Courts  of  probate  powers  have,  ordinarily,  jurisdiction  to 
construe  wills  only  so  far  as  is-  necesary  in  exercising  their 
jurisdiction  over  decedent's  estate,  such  as  hearing  exceptions 
to  accounts  and  the  like.^^ 

By  statute  in  some  jurisdictions,  courts  of  probate  powers 
are  given  especial  authority  to  direct  the  payment  of  legacies. 
Where  such  powers  exist,  probate  courts  may  construe  wills 
in  so  far  as  is  necessary  to  direct  the  payments  of  legacies.^'' 

The  power  of  a  probate  court  to  construe  a  will  in  settling 
the  estate  does  not,  however,  exclude  courts  of  equity  from  en- 
tertaining suits  to  construe  wills  in  proper  cases.^'*  And,  on 
the  other  hand,  a  proceeding  in  a  court  of  equity  to  obtain 
a  construction  of  a  will  and  enforce  a  trust  does  not  deprive 
a  court  of  probate  powers  of  its  jurisdiction  in  settling  the 
estate.  ^^ 

Where  foreign  wills  provide  for  separate  dispositions  of  prop- 
erty situated  in  an  American  state,  the  court  of  that  state  may, 
upon  the  application  of  the  executor  of  the  will  for  this 
country,  determine  whether  a  given  legacy  had  lapsed ;  but  as 

atees    of    tlifir    interest    whicli    the  22  Burton's   Estate,    93   Cnl.    459 : 

probate  court  had  no  jurisdiction  to  Mclntire  v.  Mclntire,  14  App.  D.  C. 

determine.      In   Jaclcson   v.   Thonip-  337;    Dunham   v.   Marsh,   52   N.   .1. 

son,    84    Me.    44,    it   was    held    that  Eq.  250,  affirmed  52  N.  J.  Eq.  831  ; 

equity  could  not  determine  the  va-  Stevens    v.    Dewey,    55    N.    J.    Eq. 

lidity   of    such   an   assignment.      In  232;   Rosborough  v.  Mills,  35  S.  C. 

Montignani  v.  Blade,  145  N.  Y.  Ill,  578. 

it  was  held  that  equity  could  not,  23  Burton's   Estate,    93   Cal.   459 : 

in  a  suit  to  construe  a  will,  deter-  Rosborough  v.  Mills,   35   S.  C.  578  : 

mine  the  validity  of  an  assignment  Hudgins   v.   Leggett,    84    Tex.    207 

made    by    a    beneficiary    under    the  24  Stevens    v.    Dewey,    55    N".     J. 

will,  the  assignee  not  being  a  party  Eq.    232 ;    Davis    v.    Hutchings,    15 

to  the  suit.  0.   C.   C.    174:    8   O.   C.   Dec.   52,  re- 

2iLongwith    v.    Riggs,    123    111.  versing   G  O.  Dec.   371,  4  O.   N.   P. 

258;    Minklcr   v.    Simons,    172    111.  276.    Burnham  v.  Norton,  100  Wis.  8. 

323 ;   Richardson  v.  Richardson,  80  25  Minkler    v.     Simons,     172    111. 

Me.  585;  Ladd  v.  Chase,  155  Mass.  323,    reversing    71    111.    App.    462; 
417. 


964  LAW     OF     WILLS. 

there  was  a  residuary  bequest  to  the  foreign  executors,  the 
American  court  could  not  determine  who  wouhl  benefit  by 
such  lapse.^*^ 

If  the  parties  adverse  in  interest  are  citizens  of  different 
states,  the  United  States  Courts  have  jurisdiction  to  construe 
and  interpret  a  wiU.-'^  But  where  the  parties  really  adverse  in 
interest  reside  in  the  same  state,  the  fact  that  upon  the  record 
a  resident  of  a  different  state  who  had  no  real  interest  in  the 
controversy  appears  as  the  party  adversary  to  both  of  the  real 
parties,  does  not  give  the  United  States  Courts  jurisdiction 
of  the  case.^^ 

§808.     Parties  to  suits  to  construe  wills. 

The  proper  plaintiff  in  a  suit  to  construe  a  will  is  usually 
the  executor,-^  or  an  administrator  with  the  \vill  annexed,^*^ 
or  a  testamentary  trustee^ ^  upon  whom  some  duty  is  cast  by  the 
will  concerning  which  he  needs  the  instruction  and  direc- 
tion of  the  court  for  his  immediate  action. 

It  is  generally  held  that  beneficiaries  under  the  will,  whose 
immiediate  interests  may  be  affected,  may  bring  suit  for  con- 
struction.^- 

In  some  jurisdictions  the  beneficiaries  under  a  will  can  not 
bring  a  suit  to  construe  if  their  rights  can  be  adjudicated  in 
an  action  at  law.'^^ 

An  administrator  of  the  deceased's  next  of  kin^^  or  the 
guardian  of  an  insane  beneficiary  cestui  que  trust  may  sue 
for  construction. 

2s  Hockwell      V.      Bradshaw,      67  Stevens    v.    Dewey,    55    N.    J.    Eq. 

Conn.    8.  232. 

2  7  Wood   V.    Paine,    66    Fed.    807:  3i  Readman  v.  Ferguson,  13  App. 

Security    Co.    v.    Pratt,    65    Conn.  D.   C.   60. 

161.  32  Crerar    v.    Williams,    145    111. 

28Patton   V.   Cilley,   62   Fed.   408.  625;   Wintermute  v.  Heinly,  81   lo. 

29Belfield    v.    Booth,     63    Conn.  169;    Read  v.  Williams,   125  N.   Y. 

299:    In    re    Batchelder,    147    Mass.  560.     Where  their  immediate  inter- 

465 ;     Lodd    v.     Chase,     155    Mass.  ests  are  not  affected,  they  can  not 

417;   Kilburn  v.  Dodd    (K  J.  Eq.)  sue.      Well's    Estate.    69    Vt.    388. 

30    Atl.    868  ;    Davis   v.    Hutehinirs.  33  Torrev  v.  Torrey,  55  N.  J.  Eq. 

15  Ohio  C.  C.  174,  reversing  4  Ohio  410;    Minkler    v.    Simons,    172    111. 

N.  P.  276.  323,  reversing  71  111.  App.  462. 

soStofF   v.   McGinn,    178    111.   46;  34  Healy  v.  Reed,   153  Mass.   197. 


LAW     OF     WILLS. 


965 


There  is,  however,  a  conflict  as  to  whether  the  assignee  of 
a  beneficiary  under  a  will  may  Sue  to  obtain  instruction.^^ 

Even  where  the  facts  are  not  such  as  to  wan-ant  the  execu- 
tor or  administrator  or  trustee  in  obtaining  the  direction  of 
the  court,  an  action  may  be  brought  by  a  devisee  or  heir  for  that 
purpose,  if  necessary  to  determine  his  immediate  rights.^^ 
Thus  the .  cestui  que  trust  can  not  maintain  an  action  to  con- 
strue a  will  in  order  to  determine  who  will  take  a  continffent 
remainder  at  his  death.^'  In  such  case,  of  course,  the  creditor 
of  the  life  tenant  can  not  bring  suit  to  determine  what  rights, 
if  any,  lie  would  have  to  the  balance  after  the  life  estate  was 
exhausted,  where  under  the  will  the  life  estate  may  be  sold  on 
execution. "^^ 

But  those  who  have  no  interest  in  the  outcome  of  either  con- 
struction claimed,  can  not  be  heard  to  raise  the  question  of  the 
correct  construction  of  the  will.  Thus  heirs  can  not  attack  the 
validity  of  certain  devises  where  the  will  as  a  whole  is  admitted 
to  be  valid  and  it  contains  a  residuary  clause,  since  the  heirs 
can  not  be  benefited  by  defeating  the  devise.^^ 

Whether  tlie  proper  party  brings  the  suit  or  not,  if  the  parties 
affected  by  the  construction  are  properly  made  parties  to  the 
suit,  and  if  the  executors  by  their  answer  submit  the  question 
of  construction  to  the  court,  the  court  has  jurisdiction  to  con- 
strue the  will,'*^  and  when  the  wrong  party  sues,  it  has  been 


35  In  Lyon  v.  Clawson,  56  N.  J. 
Eq.  042,  affirmed  58  (N.  J.  Eq.).,584, 
43  Atl.  1898,  it  wns  held  that  an 
assignee  of  an  interest  in  a  legacy 
in  remainder  might,  upon  the  deter- 
mination of  the  precedent  estate, 
sue  to  obtain  a  construction  of  the 
will  and  compel  the  executor  to 
pay  over  the  trust  fund  to  the  as- 
signee of  such  remainder  man.  In 
Mellon  V.  Mellen,  139  N.  Y.  210, 
it  was  held  that  the  grantee  of  a 
devisee  could  not  maintain  such  an 
action. 


36  Kennedy  v.  Merrick,  46  Neb. 
2G0. 

37  Horton  v.  Cantwell,  108  N.  Y. 
255. 

38  Coleman  v.  Sumrall  ( Ky. ) 
(1890),    15    S.   W.   667;    12   Ky.L. 

Rep.  770. 

39Crerar  v.  Williams,  145  111. 
625;  34  N.  E.  467,  affirming  44  111. 
App.  497-;  Widdowson's  Estate,  189 
Pa.  St.  338. 

40  Dean  v.  Mumford,  102  Mich. 
510. 


906  LAW    OF    WILLS. 

held  to  be  only  error,  provided  all  the  parties  affected  are  made 
parties  to  the  suit;  and,  hence,  a  decree  construing  the  will 
is  a  bar  if  error  procedings  are  not  brought.-*^ 

All  the  parties  whose  interest  will  be  affected  by  the  de- 
cree of  the  construction  should  be  parties  to  the  record  f-  and 
if  the  parties  whose  interests  may  be  affected  can  not  be  made 
parties  to  the  record,  as  where  they  are  not  in  being,  the  court 
should  not  entertain  a  suit  for  construction.^^ 

Where,  however,  the  executors  who  were  plaintiffs  in  the 
suit  to  construe  the  will  did  not  make  themselves  defendants 
in  their  individual  capacities,  it  was  held  not  such  irregularity 
as  would  prevent  the  Supreme  Court  from  deciding  law  ques- 
tions reserved  to  it  by  the  superior  courf*"* 

§809.     Suit  for  construction  not  contest  or  reformation. 

Since  a  suit  for  construction  is  not  a  contest  and  assumes  the 
validity  of  the  will,  neither  the  heir  nor  next  of  kin  can  main- 
tain any  action  to  declare  certain  provisions  of  the  will  void 
where  the  property  given  by  such  provisions  will  pass  under  the 
will  to  the  residuary  devisees  or  legatees  and  not  the  heir  or 
next  of  kin.*^ 

It  has  been  held,  however,  that  on  filing  a  cross-petition  al- 
leging the  necessary  facts  and  on  complying  with  the  formali- 
ties necessary  to  contest,  a  suit  to  construe  may  be  made  the 
means  of  contesting  the  validity  of  the  will  before  passing  on 
the  construction.'*^ 

It  is  very  generally  conceded  that  in  a  suit  to  construe 
a  will  equity  can  not  reform  the  same,  as  it  would  a  deed  or 
a  contract.'*'^ 

4iStoff   V.    McGinn,    178    111.    46.  625;   Mason  v.  Roll,   130  Ind.  260; 

42  Ward  V.  Ward,  95  Ala.  331;  Barkley  v.  Donnelly,  112  Mo.  561; 
10  So.  832;  Ex  parte  Whalen,  —  19  S.  W.  305:  Anderson  v.  Apple- 
Ky.  —  1897;  39  S.  W.  35;  Montig-  ton.  112  N.  Y.  104;  2  L.  R.  A. 
nani  v.  Blade,  145  N.  Y.  111.  175;   Onderdonk  v.   Onderdonk,   127 

43  Traphagen  V.  Levy,  45  N.  J.  Eq.  N.  Y.  196;  Sawtelle  v.  Ripley,  85 
448.  Wis.    72. 

44  Cunningham  v.  Cunningham,  72  46  Mason  v.  Roll.  130  Ind.  200. 
Conn.  253.  47  Eckford  v.  Eckford.  91  lo.  54; 

45  Crerar    v.    Williams,    145    111.  Bingel  v.  Volz,  142  111.  214  ;  16  L.  R. 


Qfi7 

LAW    OF    WILLS.  '^"' 

§810.    Pleadings. 

Written  pleadings  are  necessary  in  a  suit  to  contest  a  will."'^ 
Where  a  distinction  in  equity  proceedings  is  made  between 
informal  applications  by  petition  and  form^al  application  by 
bill,  a  suit  to  construe  a  will  must  be  by  bill.'^^ 

§811.     Notice. 

Xotice  of  a  suit  to  construe  a  will  is  usually  provided 
for  by  statute,  in  the  same  manner  as  notice  of  any  other  suit. 
As  the  usual  rules  of  the  issuing  and  service  of  process  apply 
here,  this  subject  will  not  be  entered  upon  further. 

§812.     Decree. 

A  decree  construing  the  will  and  determining  the  rights  of 
the  parties  to  such  proceeding,  if  rendered  by  a  court  of  com- 
petent jurisdiction,  is  binding  upon  all  parties  to  the  suit 
to  construe  until  attacked  directly  by  appeal  or  error.^*^  Thus 
a  decree  that  A  had  a  life  estate  only,  binds  A  where  he  was 
a  party  to  the  construction  suit,  although  the  remainder-men 
were  not  made  parties.^^  Such  decree  can  not  be  attacked  col- 
laterally on  the  ground  that  the  will  did  not  require  construc- 
tion,^2  oj.  that  the  construction  suit  was  not  brought  by  the 

proper  partv  plaintiif.^^ 

While  a  decree  of  construction  is  binding  on  the  parties  there- 
to, it  is  not  binding  upon  the  descendants  of   a  party,  who 

A.  322;   Sturgis  v.  Work,   122  Ind.  ao  Fayerweather  v   Ritch.  91  Fed. 

134;     Schlottman    v.    Hoffman,    73  Rep.  721 ;   Stoif  v.  McG.nn,  1 . 8  II  • 

^^„  4G;    Coghlan    v.    Dana,    1/3    Mas:,. 

Miss.    ^^  ■                                        ,  .o-i  .     Hershety    v.    Meeker    County 

"The    rule    is    fundamental    that  ^^^ .     nei&ucj' 

^          4.-         r.t  T?«Tik     71    Minn.    255;    Stevens    v. 

Hiere    can    be    no    reformation    of  iJank,     il    miiin.    ^o^ , 

cnere    can     uc    .                 ^       .       •„  -Hpwpv    ^5  N   J   Eq.  232 ;  Hawthorn 

(a    will)     on    the    ground    of    mis-  'l^'^'^^^;  ^^  f- ^^  ^^J    ^J,.   .7   c    E 

take,    accident    or    surprise    as    in  v.  Beckwith,  89  Va.  786,   1/    S.  E. 

the  case  of  conveyances  of  real  es-  241. 

tate   or    in    other    contracts."    Eck-  ^i  Hawthorn  v.  Beckwith.  89  \  a. 


ford  v.  Eckford,  91  To.  54.  786 ;  17  S.  E   241. 

„       „  c       n„^     f;a   V     T  52  Stoff  v.  McGinn,  1/8  ill.  40. 

48Sinalley  v.    Smalley,   54  N.  J.  ^,  ^^^^  ,^  ^,^^._    ^^^  ni.  46. 

Eq.   591. 

49  Smalley  v.   Smalley,   54  N.  J. 
F>q.  591. 


53  Stoff  v.  McGinn,  178  HI.  46. 


968  "LAW    OF    WILLS. 

claim  not  by  descent  from  such  party  but  by  purchase  under 
the  will."'*  But  it  is  binding  upon  those  claiming  under  such 
a  party  by  descent.^^ 

Where  no  application  is  made  to  the  probate  court  for  for- 
mal construction,  a  decree  of  distribution  does  not  operate  as 
a  final  adjudication  of  the  ultimate  rights  of  beneficiaries 
under  the  will.^^  But  where  the  probate  court  has  full  power  to 
construe  the  will  so  as  to  determine  the  ultimate  proj)erty  rights 
of  the  beneficiaries,  a  decree  to  that  effect  rendered  by  such 
court^''^  or  the  prior  pendency  of  a  suit  to  construe  the  will  in 
such  probate  court^^  is  a  bar  to  a  suljscquent  suit  to  con- 
strue. 

Where,  however,  the  court  of  probate  powers  refers  the  peti- 
tion for  construction  to  a  commissioner  to  take  testimony  and 
report  as  to  the  debts  of  decedent,  the  transactions  of  the  ex- 
ecutor and  the  like,  such  decree  is  interlocutory  merely,  and  not 
final.^^ 

§813.     Costs  and  attorney  fees. 

In  suits  to  construe  wills  the  courts  are  not  in  harmony  as 
to  their  powers  and  duties  in  matters  of  costs  and  attorney's 
fees. 

In  some  jurisdictions  it  is  held  that  in  a  suit  for  construc- 
tion, the  defeated  claimant  who  has  resisted  a  certain  construc- 
tion can  not  have  his  costs  or  attorney's  fees  out  of  the  estate.^*^ 

In  other  jurisdictions,  the  apportionment  of  costs  and  at- 
torney's fees  is  within  the  sound  discretion  of  the  court,  and  it 
is  held  that  if  the  ambiguity  of  the  will  caused  the  difficulty 

SI  Malona  v.  Schwin?,  101  Ky.  56.  may    be    a    complete!   determination 

55  Lawe  V.   Holder,    106   Gm.   879.  of  the   rights   of   the   parties.) 

56  Hershey  v.  Meeker  County  ss  Garlock  v.  Vandevort.  128  N. 
Bank,  71  Minn.  2.5.5;  Stevens  v.  Y.  374;  In  re  VerpLanck,  91  N.  Y. 
Dewey,   ,55   N.  J.   Eq.   2.32.  439:  Riggs  v.  Cragg,  89  N.  Y.  479. 

sTGoldtree   v.   Thompson    (Cal.),  so  Sims  v.  Sims,  94  Va.  .580. 

20  Pac.  414.      (At  least  where  such  so  Kimball     v.     New     Hampshire 

decree   is   not   set   out   in   full   and       Bible  Society,   65  N.  H.   139. 


LAW     OF     WILLS. 


969 


in  construction,  tlie  defeated  party,  as  well  as  the  successful 
party,  is  entitled  to  his  costs  out  of  the  estate,®^ 

Where  the  apportionment  of  costs  is  within  the  discretion  of 
the  court,  such  costs  can  not  be  taxed  by  the  clerk  as  in  or- 
dinary cases.*^^ 

The  allowance  of  attorney  fees  to  the  defeated  party  is  ques- 
tioned somewhat  more  than  the  allowance  of  costs,  but  is 
generally  recognized  as  proper  if  costs  are  allowed.^^  Allow- 
ance of  costs  and  attorney  fees  to  the  defeated  party  can  be 
justified  as  follows:  The  difficulty  in  construction  was  created 
by  the  testator,  not  by  the  defeated  party.  Hence  the  costs  of  ob- 
taining a  judicial  construction  of  such  a  will  should  be  borne 
by  testator's  estate.^'* 

In  accordance  with  this  reasoning,  attorney  fees  are  not  al- 
lowed to  one  who  is  really  suing,  under  cover  of  construc- 
tion, to  have  the  will  declared  void.®^ 

§814.     Estoppel. 

Where  the  beneficiaries  under  a  will  have  themselves  placed 
a  practical  construction  upon  such  will,  and  have  released 
their  interests  as  thus  construed,  for  a  valuable  consideration, 
they  are  bound  by  such  construction.^^  But  the  interests  of 
others  not  parties  to  such  instrument,  can  not  be  affected  by 
estoppel.^'^ 

The  doctrine  of  estoppel  also  applies  to  cases  where  devisee 
has  an  election  between  taking  under  the  will,  and  standing 
on  his  legal  rights  outside  the  will.*'^     Thus  a  widow  to  whom 

61  Charter  v.  Charter,  L.  R.  7  H.  tween    solicitor    and    client,    should 

L.     364 ;     Ingraham    v.    Ingraham,  come    out    of    the    general    estate." 

169  111.432;  Moore  v.  Alden,  80  Me.  Charter   v.   Charter,   L.   R.   7   H.   L. 

301 ;    Morse  v.    Stearns,    131    Mass.  364. 

38().  65  Thornton    v.    Zea     (Tex.     Civ. 

62Horton    v.    Upham,    72    Conn.  App.)     (1899),    55    S.   W.   798. 

29.  66  Thornington  v.   Hall,   111   Ala. 

63Donges's  Estate,  103  Wis.  497.  323;    Pate  v.   French,    122   Ind.   10. 

64  "The     difficulty     having     beon  e^  Pate   v.    French,    122    Ind.    10. 

created  by  act  of  the  testatrix,  the  es  See  Sec.  726,   Election.     Hodg- 

costs    of   all    parties,    taxed   as   be-  man's  Estate,  140  N.  Y.  421. 


970 


LAW     OF     WILLS. 


property  has  been  given  by  will  in  full  satisfaction  of  her 
dower  and  distribnti^•e  share,  can  not  after  taking  the  prop- 
erty thus  bequeathed  take  lapsed  legacies.^^ 

A  devisee  or  legatee  who  is  not  put  to  an  election,  is  not 
estopped  to  claim  that  certain  recitals  of  fact  in  the  will  are 
erroneous,''^ '^  or  that  certain  items  of  the  will  are  of  no  effect 
in  lawJ^  Thus  a  beneficiary  under  a  will  is  not  estopped  by 
a  o-eneral  residuary  clause  containing  no  specific  description 
of  the  property  involved,  to  claim  that  a  deed  given  by  him  to 
testator  was  understood  to  be  a  mortgage  in  equity,  and  that 
the  debt  secured  thereby  had  been  dischargedJ^ 

A  devisee  who  claimed  under  a  will  which  forbade  the  de- 
visees to  contest  it  or  to  attempt  to  set  aside  any  of  its  pro- 
visions, is  not  estopped  from  a  suit  to  construe  the  vriW  and  to 
enforce  it  as  construedJ^ 

§815.     Error. 

A  decree  of  a  court  construing  a  will  upon  suit  brought  for 
that  purjwse  may  be  reversed,  if  erroneous,  by  a  petition  in  er- 
ror brought  as  in  other  cases."^^ 


69Hodgman's   Estate,    140   N.   Y.  72  Tompkins  v.  Meniman,  155  Pa. 

421.  St.  440. 

TO  Hatch    V.    Ferguson,     68    Fed.  73  Black  v.  Herring,  79  Md.  14G; 

43.     Nor  is  the  recipient  of  a  gift  28  Atl.  1063. 

causa    mortis    estopped    to    claim  t*  Davis    v.    Coflfman,    55    0.    S. 

under  the  will.     May  v.  Jones,  87  556. 
lo.  188:  54  N.  W.  231. 

71  Schmidt's  Estate,  —  Mont.  — ; 
38  Pac.  547. 


LAW    OF     WILLS.  ^'^ 


CHAPTER  XLl. 

EVIDENCE  IN  AID  OF  CONSTRUCTION. 

§816.     General  principles  controlling  admissibility  of  evidence 
in  construction. 

As  will  be  seen  from  an  inspection  of  the  cases  cited  under 
the  heading  of  Construction,  the  question  of  the  admissibility 
of  evidence  in  the  construction  is  not,  by  any  means,  limited 
to  suits  to  construe  a  will.  Almost  any  litigation  which  in- 
volves the  title  to  property,  such  as,  for  example,  partition  suits 
or  suits  in  ejectment,  may  involve  the  question  of  the  con- 
struction of  a  will  under  which  title  to  such  property  is  claimed. 
Questions  of  admissil)ility  of  extrinsic  evidence  to  aid  in  con- 
struction may,  therefore,  arise  in  any  kind  of  a  suit  in  which 
a  will  is  relied  upon  as  a  means  of  tracing  title,  in  addition  to 
suits  brought  for  the  sole  purpose  of  construing  a  will. 

The  rules  controlling  the  admissibility  of  evidence  in  the 
construction  of  wills  and  testaments  have  developed  in  par- 
allel lines  with  the  developement  of  the  rules  controlling  the 
formality  of  the  execution  of  such  instruments.  The  rules  con- 
trolling the  admissibility  of  evidence  to  determine  the  meaning 
of  devises  of  real  estate  have  remained  substantially  the  same, 
from  the  first  introduction  of  wills  into  our  system  of  law;  for 
a  will  passing  real  estate  has  always  been  required  to  be  in 
writing.  As  society  has  developed,  new  questions  and  new  com- 
binations have,  from  time  to  time,   arisen,   and  the  form  in 


972  LA.W    OF    WILLS. 

which  the  general  niles  of  evidence  have  been  stated  has  va- 
ried accordingly.  Testaments  passing  personalty,  on  the  other 
hand,  might  at  first  be  nuncupative,  and  consequently  there  was 
little  or  no  restriction  on  the  admissibility  of  any  sort  of  evi- 
dence which  would  serve  to  show  testator's  intention.  At 
modem  law,  a  testatment  must  be  in  writing  and  executed  with 
the  same  formalities  in  most  states  as  are  requisite  in  the  case 
of  a  will  passing  realty.  Accordingly,  the  rules  controlling  the 
admissibility  of  extrinsic  evidence  to  determine  testator's  inten- 
tion, in  reference  to  personalty,  have  gradually  been  restricted 
until  at  present  the  rules  of  evidence  are  substantially  the  same 
in  cases  of  wills  and  testaments.  Since  both  wills  and  tes- 
taments are  required  to  be  in  writing,  no  part  of  either  can  be 
created  by  mere  oral  statement ;  as  we  have  seen  already,^  "the 
intention  of  the  testator  is  always  to  be  deduced  from  the  words 
actually  written  in  the  will."  ^  In  determining  testator's  in- 
tention "the  true  inquiry  is  not  what  a  testator  meant  to  ex- 
press, but  what  the  words  used  do  express."  =^  Accordingly, 
the  fundamental  principle  controlling  the  admissibility  of  ex- 
trinsic evidence  is,  that  extrinsic  evidence  can  not  be  received 
as  evidence  of  testator's  intention  outside  of,  and  independent 
of,  the  wi-itten  words  employed  by  testator.^ 

The  only  purpose  and  justification  of  the  admission  of  ex- 
trinsic evidence  is  to  explain  testator's  meaning  which  is  set 
forth  in  the  words  of  the  will.  Assuming  that  it  is  testator's 
will  which  is  to  be  construed,  it  is  the  place  of  the  court  to  find 
the  meaning  of  such  will,  if  there  is  one,  and  not  under  guise 
of  construction  or  under  general  powers  of  equity  to  assume  to 
correct  or  redraft  the  will  in  which  testator  has  expressed  his 
intentions.^ 

1  See  Sec.  460.  v.    Huston.    37    To.    668 :    Elliott   v. 

2  Sturgis  V.  Work,  122  Ind.  134.  Tapp,  63  Miss.  139;  Burke  v.  Lee, 
sBurk'e  v.  Lee,  76  Va.  386.  76  Va.  .386;  Couch  v.  Eastham,  29 
4  Starkweather  v.  Society.  72  111.  W.  Va.  784. 

50;  Decker  v.  Decker,  121  111.  341;  s  Bingel  v.  Volz,  142  111.  214:   31 

Bingel    v.    Volz,    142    111.    214;    31  N.  E.  13;    16  L.  R.  A.  321:   Whit- 

N.  E.  13;  16  L.  R.  A.  .321;  Sturgis  comb    v.    Rodman,     156    111.     116; 

V.    Work,     122    Ind.     134;     Huston  Sturgis    v.    Work,    122    Ind.     134; 


LAW     OF     WILLS.  973 

§817.     Evidence  admissible  to  show  surrounding  circumstances. 

At  tlie  outset  it  may  be  observed,  as  a  matter  of  fact  rather 
than  of  law,  that  there  is  but  little  need  of,  or  little  question 
concerning,  extrinsic  evidence  if  the  will  is  i)hiiii  uj)()n  its 
face,  and  if  the  persons  and  things  therein  mentioned  are  shown 
to  exist  exactly  as  they  are  described  in  the  will,  and  there 
is  no  question  as  to  their  identity.  Such  questions  as  are  raised 
upon  a  will  of  this  sort  are  generally  attempts  to  contradict  the 
instrument  and  are  discussed  hereafter.'^ 

The  question  of  the  admissibility  of  parol  evidcnice,  there- 
fore, is  generally  raised  where  the  will,  either  upon  its  face, 
or  by  reason  of  imiierfoct  description  of  the  subject  matter  of 
the  gift  or  the  object  of  testator's  bounty,  is  ambiguous  or 
uncertain.  In  any  case,  wherever  it  is  necessary  to  in^'oke  ex- 
trinsic evidence  to  assist  in  the  construction  of  a  will,  it  is 
recognized  by  the  great  weight  of  authority  that  evidence  of 
the  facts  and  circumstances,  existing  at  the  time  of  the  ex- 
ecution of  the  will,  and  kno^vn  to  testator,  with  reference  to 
which  he  drew  the  instrument  of  which  the  meaning  is  in 
question,  is  necessary,  not  to  contradict  the  meaning  of  the  will, 
but  to  "enable  the  court  to  place  itself  in  his  situation,  to  see 
things  as  he  saw  them,  and  to  apply  his  language  as  he  under- 
stood and  intended  it."  "^ 

While  in  some  of  these  cases  considerable  stress  is  put  on  the 
fact  that  evidence  is  admissible  because  of  the  ambiguity  of 
the  will,^  this  is  only  because  that  in  such  cases  extrin- 
sic evidence  is  necessary ;  and  it  seems  to  l>e  laid  doAvni  that 
in  any  case,  whether  the  will  is  ambiguous  or  not,  the  court 

Funk  V.  Davis,  103  Ind.  281;  Fitz-  L.  R.  A.   149;    Ernst  v.   Foster,   58 

Patrick  v.   Fitzpatrick,   36  lo.   674;  Kan.  438;   Nichols  v.   Boswell,   lO.S 

Eckford   v.   Eckford,   91    lo.  54:   26  Mo.  151;  Barnard  v.  Barlow,  50  N. 

L.    R.    A.    370;    Sherwood   v.    Sher-  J.    Eq.    131;    Morris   v.    Sickly.    133 

wood,    45    Wis.    357 ;    30   Am.   Rep.  N.  Y.  456 ;  .Jasper  v.  Jasper,  17  Ore. 

757.  590;   Bank  v.  Gregg,  46  S.  C.   169. 

6  See  See.  820.  «  Whitcomb   v.   Rodman,    156   111. 

TPr^den    v.    Pruden,    14    O.    St.  116 ;  28  L.  R.  A.  249 ;  Ernst  v.  Fos- 

251.      To   the   same   effect   are,    Lee  ter,   58   Kan.   438;    Bank  v.   Gregg. 

V.   Simpson.   134  U.   S.   572;    Whit-  46  S.  C.  169. 
comb  V.   Rodman,   156   111.   116;    28 


974  LAW    OF    WILLS. 

is  entitled  to  hear  such  extrinsic  evidence  of  the  surround- 
ing circumstances  as  will  j)ut  it  in  the  place  of  testator.^ 

Among  the  surrounding  facts  most  frequently  admitted  in 
evidence,  we  naturally  find  that  the  most  usual  is  evidence  of 
the  condition  of  testator's  property,  and  the  relationshij)  be- 
tween him  and  the  natural  object  of  his  bounty.^ "^ 

§818.     Evidence  necessary  where  there  is  no  ambiguity. 

While  but  few  cases  arise  upon  the  admissibility  of  evidence 
where  the  will  is  free  from  ambiguity,  extrinsic  evidence  is, 
nevertheless,  not  only  admissible,  but  necessary  for  the  pur- 
pose of  identifying  the  beneficiaries  and  the  property  disposed 
of  by  will.^^  This  arises  from  the  evident  fact  that  no  amount 
of  detailed  description  in  a  will  can  show  whether  there  are  any 
extrinsic  objects  or  persons  which  correspcaid  to  such  descrip- 
tion. This  fact  underlies  the  rules  concerning  the  admission  of 
evidence  to  explain  any  written  instrument,  and  is  made  neces- 
sary from  the  very  nature  of  the  case.  Thus  where  testator,  by 
will,  described  certain  land  as  deeded  to  him  by  A  by  deed  re- 
corded in  a  place  named  in  the  will,  extrinsic  evidence  was  ad- 
missible to  show  that  a  search  of  the  records  at  such  place  dis- 
closed only  one  deed  from  A  to  testator,  in  order  to  show  what 
property  was  devised.^  ^ 

9  Hawhe  v.  Chicago,  etc.,  Eail-  atees,  the  affection  existing  between 
road  Co.  165  111.  561.  (On  this  them,  the  motives  which  might  rea- 
point  this  case  is  a  good  authority,  sonably  be  supposed  to  operate  with 
although  the  latitude  allowed  by  him  and  to  influence  him  in  the 
the  court  in  the  evidence  admit-  disposition  of  his  property,  are  all 
ted  is  greater  that  the  weight  of  entitled  to  the  consideration  in  ex- 
authority   will   justify.)  pounding  doubtful  words  and  ascer- 

10  Smith  V.  Bell,  6  Pet.  68 ;  taining  the  meaning  in  which  testa- 
Ernst  V.  Foster,  58  Kan.  438;  tor  used  them."  Smith  v.  Bell,  0 
Nichols    V.    Boswell,    103    Mo.    151.       Pet.  68. 

"In   the   construction   of  ambigu-  n  Daugherty  v.  Eodgers,  119  Ind. 

ous    expressions,    the    situation    of  254;    Ikard   v.    Thompson.    81    Tex. 

the   parties   may   very   properly   be  285. 

taken    into    view.      The   ties    which  12  Ikard  v.  Thompson,  81  Tex.  285. 
connect   the   testator   with   his   leg- 


LAW    OF    WILLS.  075 

§819.     Admissibility  of  evidence  where  description  is  ambiguous. 

The  question  of  the  admissibility  of  extrinsic  evidence  is 
very  frequently  invoked  where  the  description  of  either  the 
property  is  to  be  disj^osed  of  by  will,  or  the  beneficiary  to  whom 
the  property  is  to  be  disposed  of,  is  ambiguous.  An  ambiguous 
description  in  this  connection  is  said  to  be  one  which  is  true  in 
part  and  false  in  part,  the  correct  part  of  which,  when  the  false 
is  rejected,  applies  equally  well  to  two  or  more  things  or  per- 
sons. 

This  definition  is  possibly  too  narrow,  since  an  ambiguous  de- 
scription may  not  be  false  in  any  part,  but  may  simply  be  so 
insufiicient  as  to  fail  to  distinguish  between  two  or  more  things 
or  persons. 

Where  the  description  in  the  v-^ill  of  the  property  disposed  of 
does  not  apply  completely  to  any  property  which  testator 
owned,  but  does  apply  in  part  to  property  owned  by  testator, 
extrinsic  evidence  is  admissible  to  show  the  surrounding  facts 
and  circumstances  in  order  to  aid  the  court  in  detemiining  what 
property  testitor  m.eant  to  dispose  of.^^ 

We  have  already  seen  that  where  testator  devises  realty 
by  its  popular  name,  considerable  latitude  is  allowed  in  the  con- 
struction, in  detemiining  what  realty  was  conveyed  by  such 
devise. -^^  In  such  cases  extrinsic  evidence  is  admissible  to  show 
what  tract  of  land  was  known  by  such  name.-^^  Thus  where 
testator  devised  his  "upland,"  it  appearing  that  he  had  no  up- 
land in  the  strict  sense  of  the  word,  evidence  was  admissible 
to  show  that  he  o^med  bottom  land  and  what  is  known  as 
bench   land    intermediate   between   bottom    land    and    upland, 

13  Masters  v.  Masters,  1  P.  Wms.  St.    Rep.    276;    Winkley   v.    Kainie, 
425;   Beaumont  v.  Fell,  2  P.  Wms.  32  N.  H.   268. 
141;    Lee    v.    Paine,    4    Hare,    2.')3:  i4  See  Sec.  488 ;  also  Sec.  487. 
Charter  v.  Charter,  L.  R.  2  P.  &  D.  is  Vandiver  v.  Vandiver,  115  Ala. 
315;   L.  R.  7  H.  L.  364;  Gilmer  v.  328;  22  So.  1.54;  Flannery  v.  High- 
Stone,    120    U.    S.    586;    Priest    v.  tower,    97     Ga.    592;     Thomson    v. 
Lackey,     140    Ind.    399;     Black    v.  Thomson,   115  Mo.  56;   McKeough's 
Richards,    95    Ind.    184 ;    Pocock   v.  Estate  v.  MoKeough,  69  Vt.  34,  41 ; 
Redinger,  108  Ind.  573;  Chappell  v.  37  Atl.  275. 
Society,   3   Ind.   App.    356;    50  Am. 


976  LAW  or  WILLS. 

and  that  he  referred  to  this  bench  hind  as  upland.^  *^  So  where 
testator  devised  his  "home  place"  or  "the  tract  of  land  on 
which  I  now  live,"  it  was  held  that  extrinsic  evidence  was  ad- 
missible to  show  what  laud  testator  regarded  as  included  within 
the  boundaries  of  such  description.^'''  So  where  testator  de- 
vised "my  two  farms,"  extrinsic  evidence  is  admissible  to  show 
in  what  sense  testator  used  those  words,  and  whether  a  sixty- 
acre  tract  was  regarded  by  him  as  a  part  of  "the  home  farm."^^ 
In  such  cases,  however,  extrinsic  evidence  of  what  persons 
residing  in  the  neighborhood  meant  by  the  expression  "home 
farm"  or  other  poi3ular  name  given  to  that  tract  of  land  is 
inadmissible.^* 

So  in  determining  the  meaning  of  the  will,  extrin- 
sic evidence  is  admissible  to  show  the  extent  of  testator's 
property,  and  that  the  property  disposed  of  by  him  by  will  was 
the  whole  of  his  real  estate.^*^  So  where  testator  devises  the 
balance  of  his  estate,  extrinsic  evidence  is  not  only  admissible, 
but  necessary,  to  show  what  was  included  in  the  term  "bal- 
ance."^^  So  where  testator  devised  a  "lot,"  extrinsic  evidence 
is  admissible  to  identify  such  "lot."-"  So  where  testator  de- 
vised the  house  where  he  lived  "being  part  of  lots  num- 
bered 15  &  16"  to  his  wife  for  life,  and  further  devised  on  his 
wife's  death  the  "same  lot"  to  his  daughter,  and  described  the 
lot  as  "numbered  15,"  it  was  held  that  extrinsic  evidence  was 
admissible  to  show  that  the  property  where  he  resided  included 
parts  of  lots  15  and  16."^ 

Where  testator  describes  the  property  devised  by  township, 
range,  section  and  quarter  section,  but  does  not  locate  it  in  the 
correct  section  or  range  or  the  like,  the  Aveight  of  authority  is 
that  extrinsic  evidence  is  admissible  to  show  exactly  what  real 
estate  testator  owned.  Under  this  view  if  he  owns  any  real  estate 

isVandlvev  v.  Vandiver,  115  Ala.  is  Taylor  v.  Boggs,  20  0.  S.  510. 

328;    22   So.   154.  20  Lomax  v.   Shinn,   162   III.    124. 

17  Thomson  v.  Thomson,  115  21  Lomax  v.  Shinn,  162  111.  124, 
Mo.  56:  Boggs  v.  Taylor,  26  0.  S.  214;  Frick  v.  Frick,  82  Md.  218, 
604 :  McKeousrh's  Estate,  v.  Mc-  22  Warner  v.  Miltenberger,  21  Md. 
Keough,    69    Vt.    34,    41;     37    Atl.  264. 

275.  23  Groves  v.  Culph,  132  Ind.  186. 

18  Black  V.  Hill,  32  O.  S.  313. 


LAW     OF    WILLS. 


977 


wliicli  corresponds  in  part  to  the  description  in  the  will,  the 
court  will  reject  the  incorrect  part  of  the  description  and  will 
pass  the  realty  conveyed  hy  the  correct  description.  This  sub- 
ject has  already  been  discussed  in  detail.^^ 

Even  greater  latitude  in  the  admission  of  extrinsic  evidence 
is  allowed  in  gifts  of  personal  property,  not  from  any  difference 
at  modern  law  as  to  the  formality  of  the  will  passing  the  two 
kinds  of  property,  but  from  the  nature  of  the  property  itself, 
and  the  difficult}'  of  exact  description  of  personalty.  Thus  where 
testator,  by  will,  bequeathed  ''my  life  insurance  policy  amount- 
ing to  $1000,"  it  was  held  that  extrinsic  evidence  was  admissible 
to  identify  such  property.^^ 

The  courts  have  gone  even  further  than  allowing  extrinsic 
evidence  of  the  surrounding  facts  and  circumstances  in  deter- 
mining testator's  intention  in  cases  of  ambiguity.  Thus  tes- 
tator provided  for  a  bequest  to  A  of  an  amount  of  money  which 
was  wintten  in  the  will  by  the  figure  5,  preceded  by  the  dol- 
lar sign  and  followed  by  two  ciphers  a  little  distance  from  the 
figure  5,  and  some  distance  above  the  line.  There  was  no  dec- 
imal mark  after  the  figure  5,  and  no  line  drawn  under  the 
ciphers;  it  was,  therefore,  impossible  to  tell  whether  he  in- 
tended the  bequest  to  be  $5  or  $500 ;  it  was  held  that  extrinsic 
evidence  was  admissible  to  show  which  of  these  two  sums  testa- 
tor meant  to  give,  thus  permitting  direct  evidence  of  his  inten- 

tion.26 

Where  the  description  of  the  beneficiary  is  ambiguous,  the 
court  allows  considerable  latitude  in  the  admission  of  extrin- 
sic evidence  to  identify  such  beneficiary.^^  Thus  where  testator 
devised  property  to  the  "sisters  of  my  late  friend  A,"  and  A, 
at  the  time  of  the  execution  of  the  will,  was  alive,  it  was  held 
that  evidence  was  admissible  to  show  that  in  former  wills  be- 
quests, evidently  to  the  same  persons,  were  made,  describing 

24  gee  Sec.  487.  ^^    ^^    Waller,    68    L.    J.    Ch. 

25Hartwig  v.  Schiefer,  147  Ind.  (X.  S.)  107;  Wilson  v.  Stephens, 
64,  affirming  42  N.  E.  471.  59   Kan.   771. 

26  Schlottmau     v.     Hoffman,     73 

Miss.  188. 


978  LAW     OF     WILLS. 

them  as  the  sisters  of  A's  father.^*^  So  a  beijuest  was  made  to 
certain  daughters  ''of  my  okl  friend  A  B."  A  B  was  unmar- 
ried, was  a  Catholic  priest  and  never  had  any  illegitimate 
children.  It  was  held  admissible  to  show  that  another  friend 
of  testator's  had  the  same  family  name  as  A  B  but  a  different 
Christian  name,  and  had  daughters.^^ 

In  another  will  testator  devised  property  to  his  "nephew  A" ; 
testator  had  two  nephews  of  that  name,  one  a  legitimate  child 
and  the  other  illegitimate.  In  the  same  will  A  had  referred  to 
two  other  illegitimate  relatives  as  his  nephew  and  neice.  It  was 
held  that  extrinsic  evidence  was  admissible  to  show  which  of  the 
two  nephews  of  the  same  name  was  intended."'" 

The  commonest  form  of  misnomer  or  misdescription  of  a 
beneficiary  is  found  where  testator  attempts  to  make  a  devise 
or  bequest  in  favor  of  a  corporation,  generally  a  church  or  char- 
itable institution.  In  such  cases,  where  either  the  name  or  the 
description  given  in  the  will  corresponds  in  part  to  the  name  or 
description  of  any  existing  corporation,  extrinsic  evidence  of 
the  relation  of  testator  to  such  corporation  is  admissible  as 
tending  to  show  his  intention  to  devise  or  bequeath  property  to 
such  corporation.^^  Thus  where  no  corporation  existed  of  the 
name  given  in  the  will,  but  there  were  two  corporations  of  sim- 
ilar names,  evidence  was  admissible  to  show  testator's  knowl- 

28 /n    re    Waller,    68    L.    J.    Ch.  /«  re  Fish   (C.  A.)    (18n4),2Ch. 

(N.   S. )    107,   affirmed   in   part   and  83.      In   this  case,   as  distinguished 

reversed  in  part,  68  L.  J.  Ch.    (N.  from    the    preceding,    testator    had 

S.)   526.  not,   in  his  will,   recognized  any  of 

29  In    re    Waller,    68    L.    J.    Ch.  his  illegitimate  relatives  as  his  own 

(N.  S.)    526.  relatives  in  specific  terms.) 

30 /n    re   Ashton    (1892),    P.    83.  si  Bristol  v.  Ontario  Orphan  Asy- 

(In  another  English  case,  however,  lum,    60    Conn.    472;    Faulkner    v. 

testator    devised    property    to    his  The    National    Sailors'    Home,    155 

"niece  A."  He  had  no  niece,  but  his  Mass.   458;    Tilley  v.   Ellis,   119   N. 

wife   had    a    legitimate   grand-niece  C.  233 ;   Keith  v.  Scales,   124  N.  C. 

and      an      illegitimate     grand-niece  497;    Smith   v.   Kimball,    62   N.    H. 

each    named    A;    it   was    held    that  606  ;  Trustees  v.  Guthrie,  86  Va.  125  ; 

the  legal  presumption  in  favor  of  the  6  L.  R.  A.  321 ;  Fifield  v.  Van  Wyck, 

legitimate  grand-niece  could  not  be  94  Va.  557  ;   27   S.  E.  446 ;  Ross  v. 

contradicted    by    extrinsic    evidence  Kiger,    42    W.    Va.    402. 
to   show   that  testator   intended   to 
devise   to    the    illegitimate    grand- 
niece. 


LAW     OF     WILLS. 


979 


edge  of,  and  interest  in,  one  of  such  corporations,  which  was 
being  organized  at  the  time  he  made  his  will,  although  it  was 
not  incorporated.^^ 

Where  a  gift  was  made  to  the  "N"ew  Jerusalem  Church  (Swe- 
denborgian)"  and  the  evidence  disclosed  that  there  was  a  gen- 
eral corporation  known  as  "The  General  Convention  of  the 
New  Jerusalem  Church  in  the  United  States  of  America," 
and  a  like  voluntary  association  known  as  the  "iSTew  Jerusalem 
Church,"  it  was  held  admissible  to  show  that  testator  knew  of 
the  voluntary  association  and  had  contributed  to  it,  but  did  not 
know  of  the  existence  of  the  corporation.^-"'  So  where  testator 
devised  to  the  "Methodist  Episcopal.  Church"  and  the  evidence 
disclosed  that  there  were  two  branches  under  similar  names, 
neither  of  them  bearing  the  exact  name  given  in  the  will,  it 
was  held  admissible  as  aiding  in  discovering  testator's  intention 
to  show  that  one  of  these  branches  had  an  organization  and 
church  building  in  testator's  neighborhood  and  the  other  did 
not.^^  So  where  testator  made  a  bequest  to  the  "Methodist 
Episcopal  Church  School  situated  in  A,"  and  the  evidence 
disclosed  that  there  was  no  school  in  that  place  of  that  name,  it 
was  held  admissible  to  show  by  extrinsic  evidence  that  there 
was  a  school  at  that  place  of  a  different  name,  but  controlled  by 
that  church,  and  that  the  testator  intended  such  school  should 
be  the  beneficiary.^^ 

It  may  be  laid  down  as  a  general  proposition,  supported  by 
the  substantially  unanimous  opinion  of  the  courts,  that  where 
the  name  of  the  beneficiary  corporation,  as  given  in  the  will, 
does  not  correspond  to  the  name  of  any  coporation  in  existence, 
it  is  always  admissible  to  show  testator's  acquaintance  with, 

32  Faulkner  v.  The  National  Sail-  any  other,  the  one  thus  shown  to  be 

ors'   Home.    155   Mass.   458.  intended    will    take."     Dunham    v. 

"Where  the  name  used  does  not  Averill.    45    Conn.    8G.    quoted    in 

desicrnate    with    precision   ^ny    cor-  Bristol  v.  Ontario  Orphan  Asylum, 

poration.     but    when     the     circum-  60    Conn.    4/2. 

stances  come  to  be  proved  so  manv  33  Fifield    v.    Van    Wyck,    94    \  a. 

of    them    concur    to    indicate    that  557;   27   S.  E.  446. 

a  particular  one  was  intended,  and  34  Tilley  v.  Ellis.   119  NC.  233. 

no  similar  conclusive  circumstances  35  Ross  v.  Kiger,  42  W.  Va.  402. 
appear  to   distinguish  and  identify 


980  LAW     OF    WILLS. 

and  interest  in,  an  existing  corporation  or  institntion  which  cor- 
responds in  some  respects,  either  in  name  or  description,  to  that 
spoken  of  in  the  wilL^'^ 

In  some  cases  the  courts  have  gone  even  farther  than  merely 
admitting  evidence  of  the  surrounding  circumstances,  and  have 
admitted  direct  evidence  of  testator's  intention  to  show  that  a 
given  corporation  or  institution  was  intended  by  him  to  take 
under  the  will  where  the  name  of  such  corporation  is  given 
in  the  will  so  erroneously  as  not  to  apply  to  any  existing  in- 
stitution. While  the  admission  of  such  evidence  goes  to  the 
very  limit  of  the  rules  controlling  the  admissibility  of  ex- 
trinsic evidence,  it  still  seems  to  be  a  well  recognized  rule.^'^ 
Thus  testator  made  a  devise  to  the  "Meredith  Institution, 
located  at  Meredith  New  Hampshire,"  and  there  was  no  in- 
stitution of  that  name.  The  devise  was  claimed  by  the  Kim- 
ball Academy,  which  was  situated  at  Meriden,  New  Hamp- 
shire. It  was  held  that  in  order  to  determine  testator's  inten- 
tion, evidence  might  be  introduced  of  his  intention  direct  by 
showing  testator's  statement  of  the  motives  that  induced  him 
to  make  such  a  devise  on  account  of  his  relationship  to  one 
of  the  teachers  of  that  institution,  and  thus  show  that  claim- 
ant was  the  institution  really  intended  as  the  beneficiary.^^ 

Where  testator  devised  property  to  his  granddaughter  "Lucy 
May  Gordon,"  and  the  evidence  disclosed  that  he  had  no  grand- 
daughter of  that  name,  but  that  he  had  one  named  Mary  Jo- 
sephine Gordon,  it  was  held  admissible  to  show  by  extrinsic 

36  Gilmore  v.  Stone,  120  U.  S.  will  were  made  to  different  insti- 
580;  Bristol  v.  Ontario  Orphans'  tutions  connected  with  the  Pres- 
Asylum,  GO  Conn.  472 ;  Brewster  v.  byterian  Churcli,  a  gift  to  "the 
McCall,  15  Conn.  274;  Ayers  v.  Board  of  Foreign  and  Home  Mis- 
Weed,  16  Conn.  291 ;  American  sions"  was  held  to  be  a  gift  to  such 
Bible  Society  v.  Wetmore,  17  Conn.  a  board  of  the  Presbyterian  Church, 
181;  King  V.  Grant,  55  Conn.  166;  although  the  evidence  disclosed  that 
Hinckley  v.  Thatcher,  139  Mlass.  similar  boards  were  connected  with 
477;  Keith  v.  Scales,  124  N.  C.  other  Churches;  Gilmore  v.  Stone, 
497 ;    Hawkins   v.   Garland,    76   Va.  120  U.  S.  586. 

149 ;    Wilson   v.    Perry,    29   W.   Va.  37  Smith    v.    Kimball,    62    N.    H. 

169,    Ross    V.    Kiger,    42    W.    Va.  606. 

402.  3s  Smith    v.    Kimball.    62    X.    H. 

By   means   of   such   evidence   and  606. 
the    fact    that    other    gifts    in    the 


LAW     OF     WILLS. 


981 


evidence  that  he  always  called  this  granddaughter  May,  and, 
at  the  time  of  the  execution  of  the  will,  he  referred  clearly 
to  this  granddaughter  and  declared  at  that  time  that  she  was  the 
beneficiary  intended,  and  that  her  name  was  Lucy  May  Gor- 
don. ^^ 

It  has  been  said  that  where  the  evidence  is  clear,  equity  may 
correct  a  description  of  land  contained  in  a  will.^^  An  exami- 
nation of  this  case,  however,  shows  that  by  "correction"  the 
court  simply  meant  that  by  the  admission  of  extrinsic  evidence 
they  would  allow  the  property  devised  to  be  identified,  and  that 
they  expressly  repudiated  the  idea  of  reframing  the  will  as  if  it 
were  a  deed  or  a  contract."*^ 

Where  testator  devised  the  southeast  quarter  of  Section  14, 
Township  98,  Range  17,  and  the  evidence  disclosed  that  he 
did  not  own  that  tract  of  land,  it  was  held  admissible  to  show 
exactly  what  land  he  owned.  The  evidence  in  this  case  dis- 
closed that  all  the  real  estate  he  owned  was  specifically  devised 
except  the  southwest  quarter  of  Section  14,  Township  98, 
Range  17;  the  court  held  that  in  view  of  such  evidence  tliey 
might  reject  the  erroneous  part  of  the  description,  viz.,  that 
the  block  was  the  southeast  quarter,  and  might  construe  in 
the  will  as  passing  the  southwest  quarter.'*^  So  testator 
devised  "the  tract  of  land  on  which  I  now  reside,"  and  gave 
the  boundaries  of  such  tract.  The  evidence  disclosed  that  the 
description  of  the  boundaries  was  erroneous,  since  it  was  de- 
scribed as  reaching  to  the  public  road,  which  it  did  not  reach 
by  one-fourth  of  a  mile.  It  was  held  that  extrinsic  evidence 
was  admissible  to  show  Avhat  testator  regarded  and  treated 
in  his  lifetime  as  being  the  tract  upon  which  he  resided, 
and  by  means  of  such  evidence  to  correct  the  description  by 

39  Gordon  v.  Burris,  141  Mo.  G02,  ,5G,    citing   on   this   point   Goode  v. 

citing     and      following     Riggs     v.  Goode,    22   Mo.    518.    Extrinsic   evi- 

Mvers     20    Mo.     239 ;     Bradley    v.  dence  admitted  in  this  case  was  of 

Rees,    113    111.    327.  the  sort  held  by  the  weight  of  au- 

■10  Thomson  v.  Thomson,   115  Mo.  thority  to  be  admissible.     See  cases 

5f5  cited  in  this  section  generally. 

41  Thomson  v.  Thomson,   115  Mo.  42  Eckford  v.  Eckford,  91   lo.  54. 


982  LAW     OF     WILLS. 

a  boundary  so  as  to  insert  one  more  side  in  the  tract,  which 
was  irregular  in  shape,  so  as  to  bring  the  tract  to  the  pub- 
lic road."^^ 

§820.     Admissibility  of  evidence  where  description  is  not  am- 
biguous. 

Before  it  is  possible  for  a  court  to  saj  that  a  description 
either  of  a  beneliciarj  or  of  property  given  by  will  is  not  am- 
biguous, it  is  necessary  to  admit  evidence  to  identify  such  bene- 
ficiary or  such  property.^^  If  such  evidence  discloses  that 
there  is  such  person  or  such  piece  of  property,  as  the  case  may 
be,  which  corresponds  to  the  name  or  description  given  in  the 
will,  the  will  is  said  to  be  not  ambiguous.  In  such  cases  the 
attempt  is  often  made,  even  by  evidence  of  the  surrounding 
facts  and  circumstances,  or  by  a  direct  evidence  of  testator's 
intention,  to  show  that  he  did  not  mean  what  the  words  em- 
ployed in  the  will  mean  when  tested  by  the  ordinary  rules  of 
construction,  and  when  applied  to  the  surrounding  facts.  To 
uphold  such  attempt  would  be,  of  course,  to  recognize  a  will 
the  most  important  part  of  which  would  be  oral.  This  would 
not  only  violate  all  ordinary  rules  of  evidence,  but  would  also 
ignore  the  statute  of  wills.  Accordingly,  where  the  language 
of  the  will  has  a  definite  meaning,  as  interpreted  by  the  rules 
of  construction,  and  applies,  without  ambiguity,  to  the  benefi- 
ciary and  property  in  existence,  extrinsic  evidence  is  not  ad- 
missible to  contradict  testator's  intention.  This  applies  equally 
to  evidence  of  the  surrounding  facts  and  circumstances  and  to 
direct  evidence  of  the  intention,  with  this  one  distinction  be- 
tween them,  that  evidence  of  the  surrounding  facts  and  cir- 
cumstances  is  likely  to  be   introduced  of  necessity  in   deter- 

43  Thomson  v.  Thomson,   115  Mo.  what  tract  was  intended  was  chiefly 

56.       ( In    this    case    some    difficulty  testator's    conduct    in    fencin<r    such 

was  found  in  identifying  the  tract,  tract  off  from  the  rest  of  his  land, 

since  testator  owned  a  great  amount  and   in   generally  recognizing   it   as 

of  land  immediately  adjoining.  The  the  home   tract.) 

evidence   relied   upon   to  determine  **  See  Sec.  817. 


LAW    OF     WILLS. 


983 


mining  whether  the  language  of  the  will  does,  in  fact,  apply 
to  the  actual  beneficiary  and  property.^^ 

Where  the  evidence  offered  is  that  of  testator's  intention 
direct  as  sho^vn  by  his  declarations,  instructions  to  the  scrive- 
ner who  drew  the  will,  and  the  like,  such  evidence  is  clearly 
inadmissible  to  contradict  the  will.'*''  Thus  where  testator  de- 
vised property  to  certain  specified  nephews  and  nieces,  it  was 
held  that  his  intention  to  exclude  other  nephews  and  nieces 
from  this  gift  could  not  be  contradicted  by  testator's  written 
declaration  in  a  letter  which  tended  to  show  that  he  meant 
to  provide  especially  for  those  nephews  and  nieces.^ ^  So  where 
a  devise  is  made  to  a  person  who  is  named  and  described  in 
the  will,  and  there  is  a  person  in  existence  of  such  name  cor- 
responding to  such  description,  the  court  can  not  receive  evi- 
dence tending  to  show  that  testator  intended  that  the  gift 
should  pass  to  a  person  of  a  different  name  or  a  different 
description.'*^ 


■45  Hatch    V.    Ferguson,    57    Fed 
96G;   Young's  Estate,   123  Cal.  337 
Bishop  V.   Howarth,  59  Conn.  455 
Jackson    v.    Alsop,    67    Conn.    249 
Avery    v.    Chappell,    6    Conn.    270 
Spencer  v.   Higgins,  22  Conn.   521 
Taubenhan   v.   Dunz,    125   111.   524 
HAyward  v.   Loper,   147   111.  41,  af- 
firming  49   III.   App.    53 ;    Fricli   v. 
Frick,    82    Md.    218:     Kimball    v. 
Story,    108    Mass.    382;    In   re  Den- 
field,     15G    Mass.    265;     Forbes    v. 
Darling,  94  Mich.  621;  Mersman  v, 
Mersman,  130  Mo.  244;  Chamblee  v. 
Broughton.     120    N.    C.     170;     Wil- 
lard's   Estate,   68   Pa.   St.    327;    Id- 
dings   V.    Iddings,    68    Pa.    St.    327: 
Orr  V.   Orr,  7   S.  &  R.   Ill;   Clarke 
V.  Clarke,  46  S.  C.  230. 

"If  the  effect  or  purpose  of  parol 
evidence  is  to  introduce  into  a  will 
matter  which  it  does  not  contain,  so 
as  to  constitute  it  a  part  of  the 
will,  to  give  to  the  will  in  itself 
considered,  operative  elements,  lan- 
guage or  provisions  which  were  not 
in  it  before,  then  such  evidence  is 
incompetent  in   a  court  whose  sole 


function  is  to  construe  wills.  Such 
evidence  is  very  difi'erent  from  that 
which  is  offered  for  the  purpose  of 
affording  a  light  by  which  what  is 
in  the  will  may  be  read,  understood, 
and  applied,  which  is  proper."  Ros- 
borough  V.  Hemphill,  5  Rich.  Eq. 
95,  quoted  in  Clarke  v.  Clarke,  46 
S.  Car.  230. 

46  Young's  Estate,  123  Cal.  337; 
Bishop  V.  Howarth,  59  Conn.  455 ; 
In  re  Denfield,  156  Mass.  265;  Frick 
V.  Friek,  82  Md.  218;  Forbes  v, 
Darling,  94  Mich.  621 ;  Mersman  v. 
Mersman,  136  Mo.  244;  Best  v. 
Hammond,  5  P.  F.  Smith,  409; 
Kelley  v.  Kelley,  1  Casey,  460; 
Asay  V.  Hoover,  5  Barr.  21 ;  Id- 
dings  V.  Iddings,  7  S.  &  R.  Ill; 
Orr  V.  Orr.  34  S  C.  275. 

*7  Wildberger  v.  Cheek,  94  Va. 
517;    27    S.    E.    441. 

48Rapp  V.  Reehling,  122  Ind.  255; 
Sauer  v.  Mollinger.  138  Pa.  St.  338; 
Root's  Estate,  187  Pa.  St.  118;  40 
Atl.  1818. 

In  Rauer  v.  Mollinger,  138  Pa. 
St.  338,  the  court  said  in  speaking 


984 


LAW     OF     WILLS. 


Where  testator  directed  in  his  will  that  certain  property 
should  he  "equally  divided  between  the  children  of  my  de- 
ceased son  J  and  the  children  of  my  daughter  E,"  and  the 
law  in  that  jurisdiction  was  established  that  such  a  gift  was 
a  gift  per  capita  to  all  the  children,  it  was  held  that  extrin- 
sic evidence  was  inadmissible  to  show  that  testator  intended 
that  the  children  of  J  should  share  one-half  of  the  property  de- 
vised between  them,  and  the  children  of  E  the  other  half.^^ 
So  where  a  will  is  clear  upon  its  face,  evidence  of  unfriendly 
relations  between  testator  and  a  beneficiary  named  by  the  will 
is  not  admissible  to  show  the  intention  of  the  testator  to  ex- 
clude such  beneficiary.^^  And  where,  on  the  other  hand, 
a  child  is  omitted  from  the  will,  and  the  local  statute  provides 
that,  unless  such  omission  is  intentional,  such  child  shall  take 
as  if  testator  had  died  intestate,  extrinsic  evidence  that  such 
omission  was  intentional  is,  ordinarily,  inadmissible.^-^ 

Where  property  disposed  of  by  will  is  described  with  sufii- 
cient  accuracy  and  it  applies  to  the  property  of  testator,  evi- 
dence of  testator's  intention  is  inadmissilile  to  contradict  the 
provisions  of  the  will  and  to  show  that  other  property  was 
intended  bv  testator.^^     Thus  it  was  held  inadmissible  to  show 


of  the  proposition  to  change  the 
name  of  the  beneficiary  by  direct 
evidence  of  testator's  instructions 
to  the  scrivener,  showing  that  the 
scriA'ener  had  made  a  mistake  in 
drafting  the  will,  "It  would  be  a 
heroic  mode  of  construing  a  will." 
So  in  Root's  Estate,  187  Pa.  St. 
118;  40  Atl.  1818,  the  will  con- 
tained a  devise,  "to  my  nephew  A." 
It  was  held  inadmissible  to  show, 
by  extrinsic  evidence,  of  testator's 
intention  that  he  meant  a  nephew 
of  his  wife's  who  had  the  same 
name. 

40  Senger  v.   Senger,   81   Va.   687. 

50  Stratton  v.  Morgan,  112  Cal. 
513;  McQueen  v.  Lilly,  131  Mo.  9. 

51  Salmon's  Estate,  107  Cal.  614; 
48  Am.  St.  Eep.  164;  In  re  Stev- 
ens, 83  Cal.   322;    17  Am.   St.  Rep. 


2.52;  Garraud's  Estate,  35  Cal.  336; 
Burns  v.  Allen,  93  Tenn.  149. 

In  some  states,  however,  the 
relation  between  the  testator  and 
his  children,  their  feeling  for  each 
other,  relative  financial  standing, 
and  the  like,  have  been  held  to  be 
admissible.  Stebbin's  Estate,  91 
Mich.  304;  34  Am.  St.  Rep.  345. 
See  Sec.  292. 

Thus  a  devise  to  testator's  wif;' 
was  made  for  life,  remainder  to  her 
"heirs."  It  was  held  inadmissible 
to  show  by  extrinsic  evidence  that 
by  the  "heirs"  of  his  wife,  testa- 
tor intended  his  own  children. 
Bower  v.  Bower,  5  Wash.  225. 

52Paton  V.  Ormerod  (1892),  P. 
247;  Colder  v.  Chandler,  87  Me. 
63;  Ehrman  v.  Hoskins,  67  Miss. 
192;  19  Am.  St.  Rep.  207:  Jones  v. 
Quattlebaum,    31    S.    C.    606. 


LAW    OF    WILLS.  ^^^ 


wtetKer  testator's  intention  was  to  devise  a  specific  tract  of 
land  or  a  certain  number  of  acres  out  of  such  tract,  that 
being  a  matter  to  be  determined  from  the  face  of  the  wilL^^^ 

Where  a  devise  of  land  described  a  specific  tract  correctly, 
except  the  starting  point,  it  was  held  inadmissible  by  extrinsic 
evidence  to  show  that  testator  intended  to  devise  a  different 
tract  of  land  to  which  the  description  did  not  apply  at  all.^^ 
Thus  the  evidence  of  the  scrivener  that  testator  ordered  him 
to  draw  the  will  so  as  to  pass  a  fee,  and  that  he  thought  in 
drafting  the  will  that  he  was  passing  a  fee,  is  inadmissible.^^ 
So  it  is  inadmissible  to  show  by  the  surrounding  facts  that 
testator  intended  to  create  a  spendthrift  trust  in  property  de- 
vised instead  of  the  absolute  gift  which  was  conveyed  by  the 

will.^^ 

Where  the  will  as  dra^m  would  not  convey  property  over 
which  testator  had  a  power  of  disposition,  extrinsic  evidence 
of  the  condition  of  testator's  property  is  inadmissible  to  show 
an  intention  to  execute  the  power.^^  So  where  a  will,  as 
dra^vn,  has  the  effect,  under  the  law,  of  passing  property  over 
which  testator  has  a  power  of  disposition  by  will,  extrinsic 
evidence  is  inadmissible  to  show  the  intention  of  testator  not 
to  pass  such  property.^«     So  evidence  is  inadmissible  to  show 

53  Jones    V.    Quattlebaum,    31    S.  se  Kingman  v.  Winchell   (Mo.)   20 

C    606.      (But  in  this  case  it  was  S.  W.  296. 

said  that  if  the  description  had  57 /n  re  Huddleston  ( 1894),  3  Ch. 
been  such  as  to  make  it  uncertain  595;  8  Reps.  462;  (the  gift  m  this 
which  tract  was  referred  to,  evi-  case  was  not  «Pf "^^/^^^  ^77^^- 
dence  would  have  been  admissible  This  question  is  largely  affected  by 
to  identify  tne  tract.  However.  local  statutes  which  modify  corn- 
there  is  no  doubt  as  to  the  identi-  mon  law  rules  on  the  subject  of 
ty  of  the  tract,  the  only  question  what  is  an  execution  of  a  power.) 
being  whether  the  devise  was  of  the  See  Sec.  696. 

entire  tract  or  of  a  certain  number  5S  Emery    v.    Haven     6  <     N.    H. 

of  acres  out  of  it.)  503;   35  Atl.  940.     In  this  case  and 

54  Ehrman   v.    Hoskins,    67    Miss.  after  the  will  was  executed,  the  tes- 

192    19  Am.  St.  Rep.  297.  tatrix  requested  the  legatee  to  sign 

'  55  Defreese  v.  Lake.  109  Mich.  a  written  acknowledgement  to  the 
415,  citing  and  following  Fraser  v.  effect  that  the  property  included 
Chene  2'  Mich  81;  Kinney  v.  under  the  power  should  not  pass  by 
Kinne'y,  34  Mich.  250 ;  Waldron  v.  the  will ;  it  was  held  that  this  evi- 
V^aldron  45  Mich.  350;  Forbes  v.  dence  was  inadmissible  to  effect  the 
Darlin-   94  Mich.  621.  legal  construction  of  the  will. 


986  LA.W    OF    WILLS. 

the  intention  of  a  testatrix  to  convert  all  real  property  into 
money  and  remove  them  to  the  state  of  her  domicile  so  that 
her  will  may  he  constrned  hy  the  law  of  snch  state,  and  in  case 
of  intestacy  that  her  property  may  be  distributed  in  accordance 
with  the  law  of  such  state.^^ 

Where  a  testator  provided  in  his  will  that  the  beneficiaries 
should  account  for  advances  made  to  them,  extrinsic  evidence 
is  inadmissible  to  show  that  he  intended  one  of  the  benefi- 
ciaries to  account  for  a  loan  made  by  testator  to  the  husband 
of  such  beneficiary  ;^°  and  extrinsic  evidence  is  inadmissible 
to  show  that  testator  intended  an  instrument  purporting  to 
be  his  "last  will"  to  operate  only  as  a  codicil,  where  from  its 
provisions  it  could  operate  as  a  will.^^ 

§821.     Admissibility  of  evidence  where  description  is  insufficient. 

A  difiicult  question  arises  where  the  description  of  the  bene- 
ficiary or  the  property  disposed  of  is  not  merely  ambiguous  or 
incomplete,  but  is  so  defective  that  it  is  impossible  to  identify 
the  person  or  property  without  direct  evidence  of  testator's 
intention.  In  some  cases  the  description  is  not  merely  de- 
fective but  entirely  lacking.  Under  these  circumstances  the 
courts  are  asked  to  admit  extrinsic  evidence  of  testator's  in- 
tention to  show  what  property  he  meant  to  dispose  of  or  to 
what  beneficiary  he  meant  it  to  pass.  The  rule  established 
by  the  weight  of  authority,  however,  is  that  extrinsic  evidence 
in  such  cases  is  entirely  inadmissible.  If  it  were  admissible, 
the  will  would  not  be  all  in  writing,  but  would  be  part  oral.*^^ 

In   jurisdictions  wliere   an   inten-  will  be  insufficint  to  pay  the  debts 

tion    to    charge    legacies    upon    the  and    leave    sufficient    for    the    lega- 

realty    must    be    expressed    in    the  cies.     Wentworth  v.  Read,   166  111. 

will,  and  can  not  be  inferred  from  139;    61    111.    App.    539;    McGough 

the   fact   that   testator   knows   that  v.   Hughes,    18   R.   I.    768;    30   Atl. 

unless  such  charge  is  made,  the  leg-  851. 

acies   must   fail,    extrinsic   evidence  "9  Clarke  v.  Clarke,  46  S.  C.  230. 

is  admissible  to  show  the  condition  ewErwin  v.  Smith,  95  Ga.  699. 

of     testator's     personal     estate,     at  6i  Mason  v.  McLean,  6  Wash.  31. 

the    time    of    the    execution    of    the  62  Heidenheimer    v.    Bauman,    84 

will,  and  to  show  that  he  must  be  Tex.   174;   31   Am.   St.  Rep.  29. 
aware    that    such    personal    estate 


LAW    OF    WILLS.  987 

Thus  where  testator  created  a  trust,  but  did  not  name  or  de- 
scribe the  beneficiary,  it  was  held  that  extrinsic  evidence  was 
inadmissible  to  show  whom  he  intended  the  beneficiaries  to 
be.^^ 

§822.     Kule  where  admissible  extrinsic  evidence  does  not  explain 
will. 

It  sometimes  happens  that  the  extrinsic  evidence  admissible 
throws  no  light  upon  the  construction  of  the  will.  In  this  case 
the  question  is  hardly  one  of  admissibility  of  the  evidence, 
since  it  is  supposed,  by  the  very  statement,  to  be  of  itself  ad- 
missible, and  its  weight  and  value  can  not  be  determined  until 
it  is  introduced  in  evidence.  In  such  a  case  the  courts  resort 
to  the  only  available  course,  and,  while  not  formally  excluding 
such  evidence,  since  it  is  immaterial,  ignore  it  and  determine 
the  meaning  of  the  will,   if  possible,  from  the  will  itself.^'* 

If,  after  the  admission  of  all  evidence  which  the  law  al- 
lows to  be  admitted,  the  court  is  unable  from  the  face  of  the 
will  and  from  the  consideration  of  such  evidence  to  determine 
testator's  intention,  the  court  will  be  compelled  to  declare 
the  will,  either  in  whole  or  in  part,  as  void  and  unenforceable 
for  uncertainty. 

§823.     Patent  and  latent  ambiguities. 

Very  ancient  and  respectable  authority  has  laid  down  as  a 
proposition  controlling  the  admissibility  of  extrinsic  evidence 
in  aiding  the  construction  of  every  written  instrument,  that  a 
distinction  is  to  be  made  between  patent  and  latent  ambigui- 
ties.^^ A  patent  ambiguity  is  defined  as  one  which  is  apparent 
upon  the  face  of  the  instrument,  as  where  in  wills  the  same 
tract  is  disposed  of  in  different  clauses  to  different  individ- 
uals.^^ A  latent  ambiguity  is  defined  as  one  which  is  not  dis- 
coverable until  extrinsic  evidence  is  introduced  to  identify  the 

63  Heidenlieimer    v.    Bauman,    84  65  Bacon's  Maxims,   Rule   23. 

Tex.  174;   31  Am.  St.  Rep.  29.  66  Bacon's  Maxims,   Rule  23. 

e4LefRngwell    v.    Bently,    74    111. 
App.  292. 


988  I-AW    OF    WILLS. 

beneficiaries  or  the  property  disposed  of  by  will,  when  it  is  de- 
veloped by  such  evidence,  either  that  the  description  in  the 
will  is  defective,  or  that  it  applies  equally  to  two  or  more  per- 
sons or  things.  This  distinction  has  been  repeatedly  recog- 
nized by  the  courts,  and  finds  expression  in  the  language  of 
many  modern  decisions.*^'^ 

This  form  of  stating  the  law  of  evidence  is,  to  say  the 
least  unfortunate.  An  examination  of  the  adjudicated  cases 
will  show  that  even  the  courts  which  insist  most  strenuously 
upon  the  distinction  admit  evidence  of  the  surrounding  facts 
and  circumstances  which  tend  to  put  the  court  in  the  position 
of  the  testator.  Indeed,  from  the  nature  of  the  case,  no  court 
can  be  safe,  except  in  the  most  extreme  and  glaring  cases,  in 
holding  that  an  apparent  inconsistency  upon  the  face  of  the 
will  is  really  an  ambiguity  before  it  has -heard  extrinsic  evi- 
dence of  these  surrounding  facts  and  circumstances.  It  may 
easily  happen  that  what  appears  to  be,  at  first  glance,  an  ambig- 
uity is  seen  to  be  a  disposition  thorouglily  consistent  and  har- 
monious when  the  court  is  once  in  the  position  of  the  tes- 
tator. On  the  other  hand,  the  courts,  which  say  in  general 
language  that  extrinsic  evidence  is  admissible  to  explain  an 
apparent  ambiguity,  recognize  in  actual  practice  a  sharp  dis- 
tinction between  the  extrinsic  evidence  of  the  surrounding 
facts  and  circumstances,  which  they  admit  very  freely,  and 
evidence  of  testator's  intention  direct,  which  they  admit  very 
sparingly.  Accordingly,  while  admitting  that  many  excellent 
authorities  have  discussed  the  law  of  (extrinsic  evidence  in 
construction  upon  the  basis  of  the  distinction  between  patent 
and  latent  ambiguities,  it  undoubtedly  would  be  a  step  in  ad- 

67  "Nor  is  there  any  principle  bet-  "At   most   this   was   an   apparent 

ter   settled   than   that   an   apparent  ambiguity  and  explainable  by  parol 

ambiguity    in    any    written    instru-  evidence."   Keith   v.    Scales,    124   N. 

ment    is    open    to    explanation   and  C.    497 ;     to    the    stime    effect    are 

removable  by  parol  evidence."  Bristol  v.  Ontario  Orphan  Asylum, 

Smith  v.  Kimball,  62  N.  H.  606,  60  Conn.  472:  Simmons  v.  Allinson, 

citing     and     following     Society     v.  118  IST.  C.  763;   Asheville  v.  Aston, 

Hatch    48    N.    h.    393;    Bartlett   v.  92  N.  C.  578 ;  Ryan  v.  Martin.  "91  N. 

Remington.  59  N.  H.  364;  Tilton  v.  C.   464;    Tilley  v.   Ellis,    119   N.   C. 

Society,  60  N.  H.  377.  233. 


LAW    OF    WILLS. 

vance  in  the  development  of  pur  law  to  discard  the  distinc- 
tion entirely.  Xo  distinction  or  classification,  whether  old 
or  new,  which  cuts  across  the  actual  distinctions  which  courts 
are  forced  to  make  in  order  to  do  justice  between  litigants, 
should  be  either  accepted  or  retained.  That  the  distinction 
is  not  founded  upon  sound  principle  can  be  seen  from  the  fact 
that  even  the  courts  which  have  most  frequently  invoked  it, 
regularly  proceed,  in  deciding  cases,  to  so  explain  the  distinc- 
tion between  the  patent  and  latent  ambiguities  as  to  eliminate 
it  practically  from  the  discussion,  and  instead  use  the  distinc- 
tion between  evidence  of  testator's  intention  direct  and  evi- 
dence of  the  surrounding  facts  and  circumstances  as  the  fun- 
damental distinction  to  be  observed. 


TABLE  OF  CASES. 


(References  are  to  sections.) 


Abbot  V.  Abbot,  372      . 
Abbott   V.    Bradstreet,    547 
Abbott   V.   Essex  Co.,   519 
Abbott   V.    Holloway,    52 
Abbott  V.   Middleton,   676 
Abell  V.  Abell,  617,  618,  700 
Abend    v.    Endowment    Fund    Com- 
mission, 59,  612,  645 
Abercrombie  v.   Abercrombie,  466 
Abney  v.  Miller.   304 
Abraham  v.  Wilkins,  178,  209,  425 
Acken   v.   Usborn,    674 
Acker,  In  re,   183 
Ackless   V.    Seekright,    190 
Ackroyd  v.   Smithson,   707 
Adair  v.  Adair,  414 
Adams    v.    Adams,    522,    572,    683, 
795,    804 

Adams  v.  Akerlund,  151,  478 

Adams  v.  Chaplin,  219 

Adams  v.  Cowen,  783 

Adams  V.   Farley,   29,   31,   469,   629 

Adams  v.   Field,   181 

Adams  v.  McBeath,  407 

Adams   v.   Mason,   577,   694 

Adams  v.  Rodman,  333 

Adams  v.  Sandige,  199 

Adams  v.  Winme,  278 

Adams  v.  Woolman,  668 

Adam's   Estate,    707 

Adams,  In  re,  611 

Adams,  Goods  of,  432 

Adamson,  Goods  of,  433 
Addeman  v.  Rice,  759,  763 
Addington  v.  Wilson,  111 
Additon  v.  Smith,  607 


Addy  V.  Grix,  219 

Adnam   v.   Cole,   799 

Aganoor's   Trust,    31 

Ahalt  V.  Hersperger,  792 

Ahl  V.  Bosler,  562 

Aiken   v.    Weckerly,   210,   213 

Aimes   v.   Holderbaum,   691 

Aiusworth.    Goods   cf,    187 

Airhart  v.  Massieu,  150 

Aitkin's  Estate,  539 

Akin  V.  Kellogg,  729,  731 

Albert   v.   Albert,    789 

Albright  \.   Albright,   749 

Alberry    v.    Sessions,    643 

Alden  v.  Johnson,  287,  293 

Alden    v.    St.    Peter's    Parisli,    641, 

643 
Aldrich  v.  Aldrich,  59,  611 
Alexander  v.  Alexander.   75 
Alexander  v.   Mendenhall,   466,   733 
Alexander   v.    Paxson,   491 
Alexander,  In  re,  39 
Alford  V.  Alford,  577 
Alford  V.   Earle,   304 
Allaire    v.    Allaire,    223 
Allbright    v.    Hannah.    70,    75.    79 
Allen   V.    Allen,    65,    637,    678,    721, 

752,    753.   782 
Allen  V,  Barnes.  692 
Allen    V.    Boomer,     166,    473,    572, 

598,  599,  717,  721.  720, 
Allen  V.  Bowen,  487 
Allen   V.   Craft,   512,   517,  564,   681 
Allen  V.  Everett.  181 
Allen  V.  Froman.  312,  316 
\llen  V.   Furness.   613 
Allen  V.  Griffin,  189,  203,  205,  206, 

227,  382 

991 


992 


TABLE  OF  CASES. 


(References  are  to  sections.) 


Allen   V.   Hannum,   737 

Allen  V.  Harnett,  730 

Allen  V.   Hooper,   89 

Allen  V.  Huff,  244 

Allen  V.  Jackson,  681 

Allen  V.  Jeter,  230,  244 

Allen  V.  Little,  93 

Allen   V.   Lyons,   487 

Allen  V.  McFarland,  660 

Allen  V.  McPherson,    131 

Allen  V.  Markle,  526 

Allen  V.  Maddock,    166 

Allen  V.  Mattison,  755 

Allen  V.  Mayfield,  661 

Allen  V.   Pray,   776 

Allen  V.   Rudell,   755 

Allen  V.  Stevens,  25,  655 

Allen  V.  Watts,  88,  700,  708 

Allen  V.  White,  2,  461,  473 

Allen's  Appeal,   474 

Allen,  hi  re,  507,  548,  561,  564, 
681,    746 

Allen's  Succession,  146,  467,  558, 
602 

Allen's  Will,  210.  218 

Allison  V.  Allison,  193,  194,  205, 
206,   208,   257 

Allison's   Appeal,   405 

Allison's  Estate,  333,  361,  373,  427, 
429 

Allyn  V.   Mather,   633 

Almy  V.   Jones,   551,   645 

Alsop   V.    Bowers,    772 

Alsop  V.  Russell,  463 

Alsop's   Appeal.    528 

Alston   V.   Davis.   229,   231 

Alvord    V.    Stone.    344 

Ambre  v.  Weishaar.  210 

American  Academy  v.  Harvard  Col- 
lege,   642 

American  Bible  Socieiy  v.  Mar- 
shall,   152.    153 

American  Bible  Society  v.  Xoble, 
152 

American  Bible  Society  v.  Price, 
96.  400. 

American  Bible  Society  v.  Wetmore, 
819 


American   Board  v.  Xelson,  281 
American  Cannel  Coal  Co.  v.  Clem- 

mens,   755 
American  Legion  of  Honor  v.  Per- 
ry,   136 
American    Mortgage    Company     v. 

Boyd,    507 
American    Seamen's   Friend   Society 

V.  Hopper,    105 
Ames  V.   Holderbaum,   764 
Ames's   Estate,   401 
Ames,  In  re,  401,  685 
Ame's  Will,  424 
Amherst  v.  Bitch,  25 
Amiss,  In  re.  219 
Amory  v.  Fellowes,  191 
Amory  v.  Meredith,  698 
Amos,   Iti'  re,   570 
Anders  v.  Gerhard,  468,  561,  564 
Anderson    v.    Anderson,     323,     561, 

572 
Anderson  v.  Appleton,  809 
Anderson  v.  Brown,  594 
Anderson  v.  Cary,  684 
Anderson    v.    Irwin,    434,    439 
Anderson  v.  Miller.  89.  91 
Anderson    v.    Richards,    491 
Anderson   v.    Schockley,    70 
Anderson's    Estate,    719 
Andrew  v.  Andrew,  659 
Andrew-s    v.    Andrews,    42,   49,    32G, 

345,   645 
Andrews   v.   Avory,    341 
Andrews  v.  Bishop,  766 
Andrews  v.   Brumfield,   476,   698 
Andrews   v.   Harron,   467 
Andrews  v.   Schoppe.   492,  494,   502 
Andrews.  In  re,  409 
Andrew's   Will,    164,    186 
Angell    V.     Springfield     Home     for 

Aged   Women.   491,   497,   600 
Annable    v.    Patch.    522 
Annin  v.   Vandoren,   575,   684 
Anstee,   Iji   re,    186 
Anthony  v.  Anthony.  517.  633 
Anthony,    In    re,    765 
Antioch   College   v.   Branson.    676 
Apperson    v.    Cottrell,    434 


TABLE  OF  CASES. 


993 


(References  a 

Applebee,   Goods  of,   276 
Appleby   v.    Brock,    323 
Applegate  v.  Smith,  489 
Appling  V.  Eades,  449 
Archer  v.  Brocksenmidt,  565 
Archer,  Goods  of,  185 
Archibald  v.  Long,   729 
Arlington    State    Bank   v.    Paulsen, 

691 
Armant's    Will,    230 
Armour's  Estate,   331,  414 
Armstrong    v.    Armstrong,    49,    405, 

410 
Armstrong's     Exr.     v.     Armstrong, 

181 
Armstrong  v.  Chew,  340 
Armstrong    v.    Douglass,    465,    631, 

632 
Armstrong      v.      Kent,      575,      578, 

684 
Armstrong  v.  Zane,  564 
Arnault   v.    Arnault,    127,   132,    411 
Arnett  v.  Arnett,  237 
Arnold     v.     Alden,     522,     523,     526, 

676 
Arnold   v.   Arnold,   291,   751,   802 
Arnold  v.   Sabin,  319 
Arthur  v.   Arthur,   466 
Arthur   v.    Odd   Fellows  Assn.,   136 
Arthur,   Goods   of,    186 
Asay   V.   Hoover,    176,   820 
Asche  V.  x\sche,  618 
Ash  V.  Abdy,  244 
Ash  V.  Ash,  286.  287 
Ashburner's    Estate,    556,    558 
Asher   v.   Whitlock,   144 
Asheville  v.   Aston,   823 
Ashurst    V.    Potter,    550,    551 
Ashmore,    In   re,    219 
Ashton    V.   Wilkinson,    803,    804 
Ash  ton,  In  re,   819 
Ashton's    Estate,    512,    515 
Ashworth  v.  Carleton,  240 
Askin's    Estate,    236,    237,    239 
Aspy   V.    Lewis,    659 
Astell,   /n  re,   163 


re  to  sections.) 

Asten    V,    Asten,    745 
Aston  V.  Wood,  774 
Atcherly    v.    Vernon,    482 
Atkinson    v.   May's   Estate,   345 
Atkinson    v.    Morris,    244,   450 
Atkinson  v.   Staigg,   28 
Atkinson,    In    re,    589,    721,    739 
Atlee   V.    Hook,    89 
Atmore    v.    Walker,    669,    749 
Atterbury    v.    Strafford,    538 
Attorney   General   v.    Bishop,   642 
Attorney   General     v.     Briggs,     645, 

655 
Attorney  General   v.  College,   647 
Attorney  General  v.   Hall,   695 
Attorney  General  v.  Lloyd,   277 
Attorney    General    v.    Newberry   Li- 
brary.   691 
Attorney  General  v.  Parker,  645 
x\ttorney  General   v.   Parnther,    109 
Attorney  General  v.   Vigor,  278 
Attorney    General    v.    Ward,    377 
Atwater   v.   Russell,   629,   637 
Attwater   v.   Attwater,   684 
Atwood   V.   Geiger,   468 
Atwood    V.    Weems,    144,    482 
Aubert  v.   Aubert,   96 
Aubert's    Appeal,    268 
Augusta     Savings    Bank    v.    Fogg, 

56 
Aulick    V.    Wallace,   473 
Aurand   v.   Wilt,   47 
Austen  v.  Graham,  110 
Austin    v.    Bailey,    806 
Austin   V.   Bristol,   676 
Austin  V.  Oakes,  268,  269,  277,  690 
Austin,    In    re,    205 
Averall  v.   Averall,  249 
Avery   v.    Chappell,   820 
Avery  v.   Moore,   83 
Avery  v.  Pixley,   180,  248,  249 
Aydlett  v.   Small,  480 
Ayers  v.  Ayers,  101,  116,  210,  212, 

223,    226 
Ayers    v.    W>ed,    819 
Aylward  v.   Briggs,   385,   409,   430 


994 


TABLE  OF  CASES. 


(References  are  to  sections.) 


B 


Baaeke    v.    Baacke,    285 

Babb  V.  Harrison,  57 

Babcock  v.  Collins,  312,  356,  357 

Babidge  v.   Vittum,   773 

Backus    V.    Baltimore   Pres.    Assoc, 

501,   562,   600,   084 
Bacigalupo  v.   Superior   Court.   319, 

321,  324 
Baeder's    Estate,    685 
Bagot,   In  re,   46t,   507 
Bagwell   V.   Dry,   507 
Bailey  v.  Bailey,  28,  166,  173 
Bailey,  Goods  of,   94 
Bailey's  Estate,  794 
Bailey  v.  Briggs,  806 
Bailey  v.  Brown,  546 
Bailey  v.  Fisher,  089 
Bailey   v.   Hawkins,   566,   595,    663, 

670 
Bailey  v.  Hoppin,  145 
Bain  v.   Cline,   116 
Baines  v.  Dixon,  561 
Bains  v.   Ottey,   533 
Baker  v.  Baker,    46,    47,    119,    123, 

186,  398,  527 
Baker  v.  Bancroft,    199 
Baker  v.  Chastang,  93 
Baker  v.  Cravens,    320,    335,    341 
Baker  v.  Dobyns,    229 
Baker  v.  Dodson,    237,    238 
Baker  v.  Farmer,   767 
Baker  v.  Lewis,    105 
Baker  v.  McAden,    616,    618,    619 

Baker  v.  McGrew,   676 

Baker    v.    McLeod,    548,    658,   6^2, 
668,   676 

Baker  v.  Riley,  462 

Baker  v.  Scott,   491,    561 

Baker  v.  Stuairt,    638 

Baker  v.  Thompson,  576 

Baker's  Appeal,   162,   164,   186,   307 

Balch  V.  Pickering,  463 

Balcom  v.  Hayes,   558 

Baldwin  v.  Baldwin,  209,  210 

Baldwin  v.  Hill,  726 

Baldwin  v.  Humphrey.   658 


Baldwin  v.  Parker,   382,  405 
Baldwin  v.  Robinson,   411,   412 
Baldwin  v.  Rogers,   545 
Baldwin  v.  Spriggs,   283,   287 
Baldwin  v.  Taylor,    463,    676 
Baldwin  v.  Vreeland,  718 
Baldwin's    Estate,    382,    383 
Baldwin,    In   re,    39 
Ball   V.    Kane,    112,    116,    127,    366, 

384,  400,  423 
Ball,   Goods  of,   437 
Ballard   v.   Carter,    142 
Ballantine  v.  Proudfoot,   105 
Balliett   v.   Veal,    468 
Balliet's   Appeal,   278 
Ballinger  v.  Connable,  788 
Ballow  V.   Hudson,   312 
Balme's   Estate,    314 
Balsley   v.    Balsley,   806 
Bancroft    v.    Fitch,    657,    660 
Bancroft    v.    Ives,    288,    292,    293, 

294 
Bancroft  v.  Otis,  133.  414,  416 
Bane  v.  Wick,  467,  733 
Bank   v.    Bliss,   66,    67,    68,    314 
Bank'    of    Charleston    v.    Dowling, 

684 
Bank  v.  Gregg,  817 
Bank  of  Ireland  v.  McCarthy,  758 
Bank  v.  White,  292 
Banks  v.  Banks,  276 
Banks    v.    Goodfellow,    94,    106 
Banks'   Will,    473,    578 
Bannatyne  v.   Bannatyne,   100 
Banning  v.  Banning,  330,  354,  434, 

489 
Banning  v.  Gottshall,  657 
Bannister  v.  Bannister,  711 
Bannister  v.  Jackson.  97,   112 
Banzer  v.   Banzer,   574 
Baptist   V.    Baptist,   97,    116 
Baptist    Church    v.    Robbarts,    249, 

432,  449 
Barber  v.  Davidson,  768 
Barber  v.  Pittsburgh,  etc.,  Ry.  Co., 

514,  526,  566.  591.   593 
Barber's  Appeal,    389 


TABLE  OF  CASES. 


995 


(References  are 

Barber's  Estate,    382,    383,    400 

Barber's  Will,   47 

Barbour    v.    Moore,    96,    125,    312, 

313,  340,  3/9,  385,  400,  427,    128 
Barclay  v.  Maskelyne,  277 
Barclay  v.  Piatt,  578,  579,  613 
Bardell   v.    Brady,   327,    330,   361 
Bare  v.  Bare,  712 
Barfield  v.  Barfield,  678 
Barksdale    \f.    Hopkins,    264,    265, 

273,    277 
Barker  v.   Bell,   158,  227,   268,  274, 

305 
Barker   v.    Donnelly,    25,    644,    648, 

653,   809 
Barker's  Estate,  291,  292,  293,  295 
Barkley    v.    Cemetery    Association, 

333,    414 
Barkman  v.  Hain,  660 
Barksdale    v.    Barksdale,    268 
Barksdale  v.  Davis,    252,    329 
Barlaw  v.  Harrison,  446 
Barlow   v.    Barnard,    604 
Barlow    v.    Waters,    23,    127,    128, 

370,   385,   400 
Barnard  v.  Adams,  645 
Barnard   v.   Bailey,   684 
Barnard  v.  Barlow,  817 
Barnard  v.   Stone,   696 
Barnes    V.    Barnes,    223,    371,    382 

383 
Barnes  v.  Crowe,  307 
Barnes  v.  Dow,  685 
Barnes  v.  Hanks,  269 
Barnes  v.  Irwin,  92 
Barnes  v.  Marshall,  573 
Barnes  v.  Patch.  528 
Barnes  v.  Stephens,    53 
Barnet  v.  Barnet,   507 
Barnett  v.  Montgomery,  685 
Barnewall  v.  Murrell,  161,  184,  227' 

244,   373,   382,   383,   450 
Barney  v.  Hayes,  34,  58,   307,   308, 

311,   343 
Barney's   Will.    129.    131,   400,   414, 

426,   428 
Barnhard  v.  Barlow.  467 
Barr  v.  Chapman,   356 


to  sections.) 

Barr  v.  Clostemian,  357 

Barr  v.  Graybill,   21 

Barr's  Will,  357 

Barrel!  v.  Barrell,  676 

Barrett  v.  Geisinger,  79 

Barrett  v.  Marsh,    611 

Barry  v.  Butlin,  406,  414 

Bartee   v.     Thompson,   188,   382 

Bartels  v.  Froehlich,  692 

Barth  v.  Barth,  684 

Bartholick's   Estate,    332,  342 

Bartholomew's   Estate,   668,   669 

Bartlett  v.  Manor,  321,  326 

r5artlett  v.  Monroe,    157 

Bartlett  v.  Patton,    467,    596 

Bartlett  v.  Bemington,  823 

Bartlett  v.  Slater,  G07 

Bartlett,  In  re.  636,   641,  642,   645, 

646,    649,    652,    684 
Barton  v.  Tuttle,  514,  517 
Bascom  v.  Albertson,  35 
Baskett's    Estate.    317 
Baskin    v.    Baskin,    205,    223,    228 
Bass  V.  Bass,  53 
Basset  v.  St.  Levan,  482 
Bassett  v.  Durfee,  719,  729 
Bassett  v.  Granger,  554,  558 
Bassett  v.  Rogers,  765 
Batchelder  v.  Batchelder,  130 
Batchelder,  In  re,  808 
Batchelor's  Estate,  608 
Bat,che)lor's     Succession,    249,    254, 

454,  780 
Bate,  In  re,  764,  773 
Bates  V.  Barry,  608 
Bates  V.  Bates,    400,   651 
Bates  V.  Dewson,    528 
Bates  V.  Gillett,    527,   665 
Bates  V.  Hoi  man,  271,  273 
Bates  V.  Leonard.  691 
Bates  V.  Officer,   198 
Bates  V.  Smith.    326 
Bates  V.  Zinsmeister.  574 
Bates.  In  re.  533.  554,  803 
Batione's  Appeal.  737 
Battle  V.  Speight,  306 
Batton  V.  Watson.  257 
Battersbv  v.  Castor.  718 


996 


TABLE  OF  CASES. 


(References   are   to  sections.) 


Baugarth  v.  Miller,  351 

Bawden,   In  re,   459,  460,   755,   757 
764,    772 

Baxter  v.  Abbott,  382,  395 

Baxter  v.  Baxter,     806 

Baxter    v.    Bowyer,    470,    713,    723 
732 

Baxter  v.  Dyer,    279 

Baxter  v.  Kitch,   74 

Baxter  v.  Winn,  582 

Baxter  v.  Wolfe,  614 

Bay  V.   Posner,   692 

Bayer  v.   Walsh,   717 

Bayley  v.  Bailey,  tQ,  53,  265 

Bayliss   v.    Pricture,    73 

Baylies  v.  Spaulding,  111 

Beadle  v.  Beadle,  699 

Beadles  v.   Alexander,  423 

Beales   v.   Cri-sford,   496,   528 

Beall  V.  Cunningham,   401 

Beall  V.  Schley,    683 

Bean  v.  Myers,  577 

Beane  v.   Yerby,   216 

Beard   v.   Jones,   604 

Beatty  v.  Lalor,  496 

Beatty's   Will,    321 

Beaty  v.  Richardson,  24 

Beaubien  v.   Cicotte,   390,  392 

Beauchamp's  Appeal,  258 

Beaumont  v.  Fell,  819 

Beaumont  v.   Keim,  273,  274 

Beauregard's  Succession,  345 

Beazley  v.  Denson,  383 

Beck  V.  Metz,  288,  292 

Becker's  Estate,  699 

Beckett,  In  re,  225 

Beckley  v.  Leffingwell,  658 

Becton  v  Alexander,  806 

Beddard  v.  Harrington,  571 

Bedell   v.    Fradenburgh,    142,   489 

Bedford   v.   Bedford,   269,   462,   562, 

597,   643,   645,   674 
Bedford's  Appeal,  592 
Bedlow's   Will.   405 
Beebe  v.   McKenzie,   52 
Beekman  v.  Bonson,  508 
Beers  v.  Naramoore,  488,  511,  599, 
630,  632,  633,  691 


Behrens  v.   Behrens,   354,  437,  443, 
448,    449,    450 

Beilstein,  In  re,  802 

Beirne  v.  Beirne,  599,  717 

Belcher  v.  Belcher,  692 

Belcher's  Will,  58 

Belfield  v.  Booth,  029,  8C8 

Belknap   v.    Robinson,   427 

Bell   Co.  V.  Alexander,    159 

Bell  V.  Bell,   701 

Bell  V.  Hewitt,   74 

Bell  V.  Hughes,  219 

Bell  V.  Newman,  3i2 

Bell  V.  Watkins,    751 

Bell's  Estate,  467 

Bell,   In  re,   684 

Bellamy  v.   Peeler,  234 

Bellas's    Estate,    574 

Bellinger,  In  re,  691 

Belshaw  v.  Chitwood,  244,  279 

Belshoover  v.  Brandt,  461 

Belton    V.    Summer,    283,  287,    312, 
340 

Benbow  v.  Moore,  41,  702 

Bence,   In  re,   677 

Bench  v.   Biles,   75" 

Benge   v.   Hiatt,    72,   73,   78 

Benn,  In  re,  463 

Bennalack  v.  Richards,  621,  689 

Bennett    v.    Bennett,    97,    100,    132, 

413,   414,   429 
Bennett  v.  Crane,   156 
Bennett  v.  Gaddis,  278,  279 
Bennett  v.  Harper,  710 
Bennett    v.    Hibbert,    23,    110,    151, 

385 
Bennett  v.  Hutchinson,   93 
Bennett  v.  Packer,    466,    681,    711. 

723 
Bennett   v  Robinson,   561 
Bennett  v.  Snerrod,  432,  449 
Bennett     v.  Simon,  485 
Bennett  v.  Tankerville,  278 
Bennett's  Estate,  765 
Benson   v.   Corbin,   676 
Benson   v.   Hall,   468 
Benson's   Estate,   537 
Benson,   In  re,    507,   736 


TABLE  OF  CASES. 


997 


(References  are  to  sections.) 


Benoist  v.  Murrin,  94,  96 
Bent  V.   Thompson,    319,   321 
Benton  v.  Benton,  548,  551,  6G8 
Bentz  V.  Fabian,  572,  576,  684 
Bentz    V.    Maryland    Bible    Society, 

5G2,  567,  674 
Berberet  v.  Berberet,  127,  223,  405, 

413,   421 
Berg's  Estate,  323,  378,  379 
Bernard  v.  Minsliall,  507 
Bernsee's    Will,    374 
Berry  v.  Berry,  524 
Besancon  v.  Bronson,  316 
Best   V.    Ferris,    557 
Best  V.  Hammond,  820 
Best  V.  Van  Hook,  582 
Bethea    v.    Bethea,    558,    594,    598, 

658,  667,  668,  669,  676 
Bethell  v.  Moore,  249 
Bettison   v.    Bromley,    191,   362 
Betts  V.  Harper,    66,    67,    68 
Beurhaus  v.   Cole,   636,   637 
Beurhaus   v.    Watertown,    154,    610, 

644 
Bevan  v.  Cooper,  747,  758 

Bevelot  v.   Lestrade,   112,   116,   127, 
128,   173,   330,   361,   382,   423 

Bever    v.    Spangler,    102,    333,    384, 
389,  394,  400 

Bevins  v.  Phillips,  49,  52 

Bey's   Succession,   384,   385 

Bibb  V.   Thomas,  247,   248 

Bice  V.  Hall,  98 

Bickham  v.  Cruttwell,  765 

Biddle  v.  Biddle,  237,  238 

Bidwell's   Succession,  418 

Bierce   v.    Bierce,    598 

Bierer's  Appeal,   72/ 

Bigelow  V.  Barr,  573 

Bigelow  V.  Cady,  599,  629 

Bigelow  V.  Clapp,  551 

Bigelow  V.  Gillott,   249,  254 

Bigelow  V.  Morong,   526 

Bigley  v.  Souvey,  53 

Bigley  v.  Watson.  140,  466 

Biggerstaff  v.  Biggerstaff,  281,  325 

Bigstaff  V.  Lnmpkins,  673 

Bilderbacli  v.   Boyce,  689 


Biles   V.   Dean,    325 
Bill   V.   Payne,   467,   543 
Billinghurst   v.    Walker,   766 
Billings  V.  Warren,  52 
Bills  V.  Bills,  on 
Bingel  v.  Volz,  466,  809,  816 
Bingham's  Appeal,  39 
Bingham,  In  re,  705,  707,  764 
Binning  \.  Binning,  589 
Birchard  v.   Scott,   645 
Bird  V.  Gilliam,  565,  579 
Bird  V.  Hawkins,  710,  754 
Bird  V.  Lucicie,    547 
Bird  V.  Merklee,  643,  647 
Bird  V.  Pickford,   637 
Bird  V.  Pope,  70,  79 
Bird  V.  Stout,    507,    755,    761 

Bird's  Estate,   308,  785 

Birks,    In    re,    526 

Birney  v.  Richardson,  551 

Bishop  V.   Blair,  89 

Bishop   V.   Howarth,   750,   754,   759, 
820 

Bishop  V.  McClelland,  669 

Bishop    V.    Sharp,    88 

Bisson  V.  R.  R.,  554,  557 

Bist,   Goods   of,    432 

Bittner  v.  Bittner,  428 

Bivins  v.   CraAvford,  462 

Bizzey   v.    Flight,    166 

Black  V.  Ellis,   47,   112 

Black   V.   Foljambe,   410 

Black  V.  Herring,  59,  472,  612,  614, 
683,  814 

Black  V.   Hill,   819 

Black  V.  Richards,  66,  67,  487,  819 

Black  V.  Williams,  676 

Blackburn  v.  Crawford,  388 

Blackbourn  v.   Tucker,  21,  25.  645, 

Blackman  v.  Preston,  53 
Blackmann  v.  Fish,  685 
Blackmer  v.  Blackmer,  492,  494 
Blackmer's  Estate,  138,  716 
Blackmore's    Succession,   489 
Blaekstone's   Appeal,   787 
Blaggs  V.  Miles.  698 
Blair  v,  Johnson,  806 


998 


TABLE  OF  CASES. 


(References  are   to  sections.) 


Blair   v.   Miller,   56/ 

Blair,  In  re,  186 

Blair's   Will,    102 

Blake  v.  Rourke,  382,  416,  421,  426 

Blake's  Estate,  750 

Blake's  Trusts,   468 

Blakely  v.  Blakely,  325,  401 

Blakelj'  v.  Quinlaii,  482 

Blakely,  In  re,  692 

Blakemore's    Succession,    142,    252, 

781 
Blakley's  Will,  108 
Blanchard  v.  Blanchard,  255,  656 
Blanchard  v.  Chapman,  461,  612 
Blanchard   v.   Wilbur,   315 
Bland   v.   Lamb,    141 
Blankenbaker  v.  Snyder,  522 
Blass  V.  Helms,  546,  548 
Bleight  V.   Bank,  702 
Blewitt  V.  Blewitt,   .14 
Block  V.  Association,  136 
Block  V.  Block,   292 
Block  V.  Mauck,   752 
Blockman  v.  Gordon,  21 
Blodgett  V.  Moore,  283,  284 
Blood's    Estate,    384 
Blood's  Will,   392 
Bloomer   v.   Waldron,    691 
Bloss's  Estate,  726 
Blough  V.   Parry,   94,   97,   108,   333, 

382,  383 
Blouin  V.  Phaneuf,  750 
Blount  V.  Walker,  341 
Blower  v.  Morret,  776 
Blume  V.  Hartman,  414,  448 
Blundell  v.  Pope,  768,  769 
Blundell,  In^  re,  650 
Blymeyer's     Will,     315,     316,    449, 

450 
Board   v.    Love,    790 
Boards,  In  re,  755,   758 
Board  of  Education  v.  Ladd,  740 
Board  of  Foreign  Missions   v.  Gulp, 

649 
Boardman  v.  Woodman,  104,  108 
Bobb's   Succession,   269 
Bock,    In    re,    330 
Bodine  v.   Arthur.   568 


Bodine  v.  Brown,  512,  554 

Bodman,  In  re,  497 

Bodwell   V.    Nutter,    681 

Boehm    v.    Kress,    380 

Boehm,  In  re,   314 

Bogan  V.  Hamilton,  482 

Bogardus  v.  Clark,  339 

Boggs  V.  Taylor,  602,  819 

Bogle,  In  re,  618 

Bohanon  v.  Walcot,  273 

Boies'    Estate,   614,    622 

Boisaubin  v.  Boisaubin,  409,  429 

Boldry  v.  Parr  is,  210 

Boling   V.    Bolin,    52 

Bolin  V.  Miller,  802 

Bolles   V.   Harries,   239 

Bolles  V.   Smith,   543 

Boiling  y.  Boiling,  38.  713 

Bolman  v.  Overall,  70,  79 

Bolton  V.  Banks,  659 

Bolton  V.  Bolton,  522 

Bolton  V.  Schriever,   340,   341 

Bolton.  In   re,    156 

Boman  v.  Boman,  291,  292,  293 

Bonanza's   Succession,   345 

Bond    V.    Home    for    Aged    Women, 

640,  648 
Bond  V.  Seawell,  161,  227 

Bonnell  v.  Bonnell,  405,  660,  662. 
806 

Bonnemort  v.  Gill,  319,  324,  325, 
397,  400 

Bonner  v.   Hastey,  590 

Bonner,  In  re,  532 

Bonner   v.   Young,   674 

Bonnet,  In  re,  507 

Book  V.  Book,   52 

Boomhower  v.  Babbitt,  607 

Boone  v.  Lewis.   190,  217 

Boone  v.  Ritchie.  333.  382 

Booraem's   Estate.   668 

Booth  V.  Arlington,  774 

Booth  V.  Baptist  Church,  162.  466, 
507,  508.  629,  636,  640,  675,  746. 
769 

Booth,    In   re,   603 

Booth's  Will.   181 

Boraston's  Case,   659 


TABLE  OF  CASES. 


999 


( References  are  to  sections.) 


Borden  v.  Borden,  278 

Borden  v.  Downey,   575,  576 

Borden  v.  Jenks,  VV6 

Borgner  v.  Brown,  058,  676 

Borland  v.  Nichols,  713 

Born   V.   Hortsman,   681 

Bo.stick  V.  Chovin,   138 

Boston  Safe  Deposit  and  Trust  Co. 

V.   Coffin,   4G3,   406,   408,   473 
Boston   Safe   Deposit   Co.   v.   Plum- 

mer,   775 
Boston  Safe  Deposit  and  Trust  Co. 

V.   Stich,  562 
Botsford  \%  Krake,  233 
Botsford's   Appeal,   773 
Boudinot    v.    Bradford,     244,     277, 

437 
Boughey  v.  Minor,  346 
Boughton  V.  Boughton,  638 
Boughton  V.  Knight,  96 
Bourke  v.  Wilson,  242 
Boutelle     v.     City     Savings     Bank, 

5S1,  631,  692 
Bowditch  V.  Andrew,  528,  549 
Bowditch  V.  Ayrauit,  608 
Bowdoin,  College  v.  Merritt,  25 
Bowen  v.  Bowen,   577,   580,   729 
Bowen  v.  Dean,  695 
Bowen  v.  Hoxie,  288,  290,  293 
Bowen  v.  Johnson,  278 
Bowen  v.  Swander,  491,  561,  718 
Bowen,  In  re,  93,  629 
Bower  v.  Bower,   94,   96,   291,   292^ 

293,  390,  394,  39V,  820 
Bowers  v.  Bowers,  281 
Bowers  v.  Bowman,    286 
Bower's  Accounts,  345 
Bower's    Estate,    548 
Bowes,  In  re,  010 
Bowey  v.   Ardill,   562 
Bowker  v.  Bowker,  524 
Bowler  v.  Bowler,  52 
Bowles  '^\  Caudle,  468 
Bowlby     ».   Thunder,   341,  611 
Bowma     v.  Bowman,  577 
Bowman,  In  re,  540 
Bowser  v.  Matler,  576 
Boyce  v.   Boyce,   675 


Boyd  V.   Cook,   255 

Boyd  V.  Sachs,  663,  681 

Boyens'  Will,   188 

Boyer  v.  Allen,  681 

Boyer  v.  Decker,  340 

Boyer's  Estate,  102,  602 

Boyes   v.    Cook,   284 

Bovkin  v.   Boykin,  776 

Boylan    v.    Meeker,    23,    223,    244, 

203,    277 
Boyle  V.  Boyle,   449,   450,   452,   694 
Box  V.   Word,   139 
Brabham  v.  Crosland,  059 
Bracken's  Estate,  322 
Braddock,  Goods  oi,  221 
Bradford   v.   Andrews,    312,   323 
Bradford  v.  Bradford,   683 
Bradford  v.  Clower,   234,   236 
Bradford  v.  Kents,  727 
Bradford  v.  McConihay,  773,  775 
Bradish   v.   Gibbs,   89,   90 
Bradish  v.  McClelland,  277 
Bradlee  v.   Andrews,   528 
Bradley  v.  Bradley,  292 
Bradley  v.  Carnes.   575,   577 
Bradley  v.  Rees,   819 
Bradley  v.  Westcott,   576 
Bradley's  Estate,   551,  668 
Bradshaw  v.  Roberts.  302 
Bradsher  v.  Hightower,  149 
Bradway  v.  Holmes,  570 
Brady  v.  Brady.  ^8\,  491,  005,  780, 

781 
Brady  v.  Cubitt,  283 
Brady  v.  McBride,   115 
Brady  v.  Smith,  72,  73 
Bragaw  v.   Bolles,   750 
Bragg  V.  Carter.  522,  550,  551 
Brahm  v.  Burchell,  304 
Bramell   v.   Adams,   743 
Bramel  v.  Bramel,  333,  381,  .385 
Bramell  v.  Cole,  605.  695 
Brand    v.    Rhodes,    573 
Brandon  v.  Robinson,  685 
Brandon  v.  Yeakle,   498 
Brandt  v.  Virginia  Coal  Co.,  575 
Branson  v.  Hill,  676 


lOOO 


TABLE  OF  CASES. 


Brasher    v.    Marsh,    459,    4(31,  462, 

472,   659,   662 
Brasier's  Estate,  251,  299 
Bratt,  In  re,   683 
Brawley  v.  Collins,  477 
Bray  v.  Pullen,  475,  551 
Brearley  v.  Brearley,  461 
Breathitt  v.  Whittaker,  67,  69,  277 
Breck  v.  Parkes,  760 
Bredenburg  v.  Barlin,  22,  692 
Breed  v.  Pratt,  115 
Breese  v.  Stiles,  292 
Breithaupt  v.  Bauskett,  24 
Brennan  v.  Moran,  799 
Brennan  v.   Winkler,  643 
Brendlinger  v.  Brendlinger,  547 
Brewer  v.  Barrett,  244,  329 
Brewer  v.  Baxter,  53 
Brewer  v.  Hieronymous,    73 
Brewster  v.  McCall,    142,    643,    819 
Brewster,  In  re,  254 
Briant  v.  Garrison,  473 
Briee   v.   Horner,    741 
Brick  V.  Brick,  47,  401 
Bridger,    In    re,    21 
Bridgewater  v.  Gordon,  540,  658 
Briggs  V.  Carroll,  750,  755 
Briggs  V.  Hosford,  767 
Brigham      v.     Fayerweather,     324, 

339 
Brigham   v.    Kenyon,    150 
Bright  V.  Adams,  53 
Bright's  Appeal,    1 1 1 
Brightman  v.  Brightman,  594 
Brill  V.  Wright,  755,  764 
Brilliant  v.  Wayne  Circuit  Judges, 

344 
Bringhurst  v.  Orth,  268,  269 
Brinker  v.   Brinker,   79 
Brinker  v.  Speer,  685 
Brinkley  v.   Sanford,   366 
Brinkman  v.  Rueggesick,  96,  403 
Brinton  v.  Van  Cott,  70,  75,  79 
Briscoe  v.  Briscoe,  574 
Bristol  V.  Ontario  Orphan  Asylum, 

819,  823 
Bristow  V.  Bristow,  800 
Bristow   V.    Warde,    726 


(References  are  to  sections.) 

Brit,  Goods  of,   164 


Britt  V.  Eawlings,  570,  573 

Brittain  v.  Carson,  557 

Broadway  National  Bank  v.  Ad- 
ams, 685 

Broach  v.  Sing,  237 

Brock,  In  re,  371 

Broderick   v.   Broderick,   773,   774 

Broderick's    Will,    315,    340 

Brogden  v.  Brown,   113 

Brokaw  v.  Peterson,  524,  594 

Brombacher  v.  Berking,  491,  579, 
595,    597,    606 

Bromley  v.  Mitchell,  52 

Bromley's  Estate.  414,  429 

Bronson   v.   Strouse,   612,   651 

Brook  V.  Chappell,  264 

Brook  V.  Turner,   89 

Brooke  v.  Kent,  276 

Brooke.   In    re,   579 

Brooke's   Appeal,   333 

Brooke's  Estate,  72,  390 

Brooks  V.  Belfast,  626,  640,  641 

Brooks  V.   Brooks,   755 

Brooks  V.  Duff  ell,  211 

Brooks  V.  Hanna,  602,  804 

Brooks  V.  Kipp,  523,  561,  594,  663, 
676 

Brooks  V.  Raynolds,  604 

Brooks  V.  Woodson.    222 

Brook's    Will,    570 

Broome  v.  Monck,  143,  148 

Brossenne    v.    Schmitt,   .717,    726 

Brotherton  v.  Hellier,  304 

Brotzman's  Appeal,  571 

Broutin  v.  Vassant.  243 

Brown  v.   Beaver,  230 

Brown  v.  Bell,  414,  441 

Brown  v.  Boyd.  482 

Bro^^^l  v.  Brown.  237.  272.  312,  434, 
445.  461,   620,  711.   717,  726,  776 

Brown  v.  Bur  dick,   340 

Brown  v.  Cannon,  269 

Brown  v.  Clark,  162.  280,  284,  307, 
310 

Brown  v.  Corey.  345 

BroAvn  V.  Eaton.    58 

Bro^\^l  v.  Esterhazy,   636 


TABLE  OF  CASES. 


1001 


(References  are  to  sections.) 


Brown  v.  Farmers'    Loan    Co.,    577 

Brown  v.  i^'isher,    4U0 

Brown  v.  Garten,  80 

Brown  v.  Gibson,  312 

Brown  v.  Grifliths,   329,   330 

Browne  v.  Hammond,   551 

Brown' V.  Hord,  758 

Brown  v.  Hospital,  50G 

Brown  v.  Just,  285 

Brown  v.  Knapp,  754 

Brown  v.  Lippincott,  676,  803 

Brown  v.  McAllister,    227 

Brown  v.  Miller,   700,   719 

Brown  v.  Mitchell,  90,  98,  389,  390, 

392,  400 
Brown  v.  Moore,  52 
Brown  v.  Peck,    681 
Brown  v.  Riggin,  113,  311,  397 
Brown  v.  Stark,   341 
Brown  v.  Sutton,  75,  79 
Brown  v.  Tilden,   264 
Brown   v.  Tompkins,    153 
Brown  v.  Thorndike,   203,   264,  276 
Brown  v.  Walker,  370,  448 
Brown  v.  Ward,  105,  111 

Bro^vn  v.  Wright,    023 
Brown- Sequard,  Goods  of,  31 

Brown,  In  re,  272,  002,  617,  669 

Brown's  W^ill,  181,  248,  254 

Browne  v.  Paull,   603 

Brownfield  v.   Browifield,   130,   717 

Browning  v.  Mostyn,  344 

Browning  v.  Reanie,  100 

Browning  v.  Southworth,  595 

Bruce  v.  Charlton,  609 

Bruce  v.  Moon,  74 

Bruch's  Estate,  681 

Brundige  v.  Benton,  354 

Brunor,  In  re,  400 

Brunson  v.  Martin,  605 

Brunt   V.    Brunt,   257 

Brush  V.  Brush,  279 

Brush  V.  Wilkins,   283 

Bryan  v.  Bradley,  52 

Bryan   v.    Dunn,    685 

Bryan  v.  Millby,  611 

Bryan  v.  White.  223 

Bryan's  Appeal,  760 


Bryant  v.  McCune,  724 

Bryant  v.  Pierce,  331,  333,  411,.423, 

426,  427,  462 
Bryce,  In  re,  173, 
Brydges  v.  Chandos,  142 
Bryson  v.  Holbrook,  561,  739 
Buchanan  v.  Denig,  005 
Buchanan  v.  Little,  037 
Buchanan   v.   Lloyd,   507,   752 
Buchanan   v.  Matlock,   434 
Buck  V.  Lantz,  145 
Buck  V.  Smith.  614 
Buck,  In  re,  647 
Buckingham  v.  Morrison,  602 
Bucklin  v.  Creighton,  565 
Buckman's  Will,  302 
Buekmaster  v.  Harrop,  148 
Budd    V.     Haines,    554,    558,    001, 

008 
Budlong's  Will,   118,   120,  128,   131, 

385 
Buehler's  Appeal,  800 

Buffinton    v.    Fall    River    National 
Bank,  713 

Buffinton  v.  Moxam,  744 

Buffon  V.  Tiverton.  504 

Bulger   V.   Ross,   94,    127,   385,   390, 
400,  405,  410,  422 

Bullard  v.  Attorney, General,  806 

Bullard  v.  Chandler,  647 

Bullard  V.  Shirley.    630,    044,    675 

Bullerdick  v.  Wright,  098 

Bullock  V.  Downs.  547,  549 

Bunch  V.  I\icks,   52 

Bunch  V.  Ray,   004 

Bundrick  v.  Haygood,  237,  447 

Bundy  V.  McKnight,  210,  218,  400, 
409 

Bunnell  v.  Evans,  517,  565 

Bunter  v.  Coke,  142 

Burbank  v.   Sweeney,    690 

Burbank  v.  Whitney,  578,  684,  695 

Burch  V.  Brown,    292 

Burdge  v.  Walling,  676 

Burdid  v.   Burdis,   678 

Burge  V.  Hamilton,  311 

Burgess    v.    Bowles,    710.    716,    728 

Burgovne  v.  Showier,  254,  432 


1002 


TABLE  OF  CASES. 


(References  are  to  sections.) 


Burke  v.  Lee,  816 

Burke  v.  Stiles,    507,    772 

Burke'a  Succession,  643 

Burkett  v.  Whittemore,  21,  85,  89, 

93,  341,  698 
Burkhart  v.   Gladdish,   94,  96,   105, 

387,  403,  776 
Burkinshaw  v.  Hodge,  798 
Burleigh  v.  Clough,  572,  578,  684 
BVirnett  v.  Milnes,  327 
Burney  v.  Allen,  2i2,  218 
Burney  v.  Torrey,  97,  132,  133,  333, 

366,    390,    426 
Burnham  v.  Burnham,  669,  675 
Burnham  v.  Comfort,  279,  779,  782 
Burnham  v.  Norton,  807 
Burnham  v.  Porter,  161 
Burns  v.  Allen,  288,  289,  293,  294, 

820 
Burns  v.  Burns,  258 
Burns  v.  Smith,  70,  72,  73,  76,  77, 

79,  81 
Burns  v.  Travis,  2ti7,  275,  277 
Burns  v.  Van  Loan,  341 
Burns'    Will,    123,    382,    385,    387, 

400 
Burr  V.   Burr,   344 
Burrow  v.    Burrow,    151 
Burrows,    In   re,    522,    676 
Burt  V.  Gill,  605 
Burton  v.  Brown,    217 
Burton  v.  Gowell,  244 
Burton  v.  Holly,  89 
Burton  v.  Scott,  382,  401 
Burton's  Estate,  80/ 
Burtonshaw  v.   Gilbert,   258,   271 
Bush  V.  Bush,   423 
Bush  V.  Couchman,  491 
Bush  V.  Delano,   333,  407,  414,  423 
Bush  V.  Lisle,  112,  418 
Bush  V.  McFarland,   220 
Butler  V.  Bushnell,  547 
Butler  V.  Butler,  463,  766 
Butler  V.  Parochial    Fund,    21 
Butler  V.  Trustees,  649 
Butler,  In  re,  765 
Butterfield  v.  Reed,  684 
Butterfield's   Will,   630 


Buys  V.  Buys,  390,  392 
Buzby  V.  Darnell,  226 
Buzby  V.  Roberts,  545 
Buzby's  Appeal,   54/ 
By  bee  v.  Bybee,  510 
Byers  v.  Hoppe,  58,  244 
Byer's   Estate,   597 
Byles  V.  Cox,  65 
Byrn   v.    Kleas,    588 
Byrne  v.  France,  659 
Byrne  v.  Hume,  768,  770,  774 
Byrne  v.  Weller,  561 
Byrnes  v.  Baer,  479 
Byrnes  v.   Stilwell,  658 
Byron,  In  re,  525 


Cable  V.  Cable,  547 

Cadell  V.  Wilcocks,  268 

Cadge,  Goods  of,  432 

Cady  V.  Cady,  7  58,  751 

Cadywold,  Goods  of,  281 

Caeman  v.  Van  Harke,  277,  450 

Cahill  V.  Owens,  434 

Cahill  V.  Russell,  089 

Cahill's  Estate,  331,  423 

Cain  V.  Bernkley,  93 

Cain  V.  Hooper,  599 

Cain  V.  Teare,    549 

Calder   v.   Curry,    703 

Caldwell   v.   Anderson,   385 

Caldwell   v.   Caldwell,   466 

Calef  V.   Parsons.   52 

Calkins  v.  Calkins,  423,  426 

Calkin's   Estate,   423 

Calkins,  In  re,   12/ 

Callagan  v.  Burns,  437 

Callaghan's   Estate.   293 

Callahan  v.  Robinson,  710,  711 

Calmes  v.  Eubank,  562 

Calloway  v.  Cooley,    340,    356,    357 

Calloway  v.  Doe,  28 

Calloway,   In  re.   314 

Cameron  v.  Cameron,  7.32 

Cameron  v.  Harper,  755 


TABLE  OF  CASES. 


1003 


(References  are  to  sections.) 


Camp  V.  Shaw,   112,  276,  299,   301, 

331,  389,  431,  432 
Camp  V.  Stark,  21 
Campbell  v.  Barrera,  126,  130,  311, 

404,  423 
Campbell  v.  Beaumont,  658 
Campbell  v.  Campbell,  98,  240,  327,- 

397,  401 
Campbell  v.  Carnahan,  97,  102 
Campbell  v.  French,   277 
Campbell  v.  i^ogan,  219 
Campbell  v.  McGuiggan,    127,    180, 

210,   211,   334,   345 
Campbell   v.   ]McKerricher,   75 
Campbell   v.   Martin,   782 
Campbell  v.  Noble,    561 
Campbell  v.  Porter,  312,  315 
Campljell  v.  Rawden,  545 
Campbell  v.  Stokes,  548,  549,  668 
Campbell,  In  re,  759 
Canada's  Appeal,  203,  206,  227,  423, 

427 
Canatsey  v.  Canatsey,  372 
Cannon   v.   Apperson,   723 
Canterbury  v.   Wyburn,   25,   35,   36 
Capel  V.  Girdler,  143 
Capp  V.  Brunner,  498 
Capper  v.  Capper,  133,  409,  424 
Capper's  Will,  319 
Carberry,  In  re,  774 
Card  V.   Alexander,   285 
Card  V.  Grinman,  244,  255 
Carder  v.  Fayette  County,  154,  675, 

733 
Carey  v.  Dennis,  55 
Carey's  Estate,  284,  340 
Carew,  In  re,  685 
Carl  V.  Gabel,  329,  382,  405 
Carl's    Appeal,    268 
Carlisle  v.  Green,   766 
Carlton   v.    Carlton,    191,    192,    193 
Carlyle   v.   Cannon,   561 
Carmichael  v.  Carmichael,  79 
Carmichael    v.    Lathrop.    782,    783, 

784,    785,    788 
Carnagy  v.  Woodcock,  493 
Carney  v.  Byron,    603 
Carney  v.  Kain,  145,  466,  628,  677 


Carpenter   v.   Bell,   28 
Carper  v.  Crowl,  669,  772 
Carpenter   v.   Bailey,    105,   323,   346 
Carpenter  v.   Calvert,   385,   389 
Carpenter  v.  Denoon,  316,  356,  357, 

358,   371 
Carpenter  v.  Hannig,  52 
Carpenter  v.  Hatch,  405,  414 
Carpenter  v.  Miller,  276,  277 
Carpenter  v.  Snow,  292,   294 
Carpenter  v.  Strange,  722 
Carpenter's   Estate,   127,   390 
Carr  v.  Bredenberg,   664 
Carr  v.  Brown,   341 
Carr  v.  Carr,  716 
Carr  v.  Effinger,   577 
Carr's  Estate,  688 
Carrico    v.    Neal,    400 
Carriger,  In  re,  127 
Carritt,   Goods   of,  267 
Carroll  v.  Bonham,   234 
Carroll  v.  Carroll,  142 
Carroll  v.  House,   127,  414,  419 
Carroll  v.  Norton,  i90 
Carroll  v.  Richardson,  806 
Carter  v.  Alexander,  470 

Carter  v.  Bentall,  526 

Carter  v.  Gray,  574,  755 

Carter  v.   Harvey,   719 

Carter  v.  Presbyterian   Church,    31, 
33,  746 

Carter  v.  Reddish,  462,  471,  565 

Carter  v.  Thomas,   278 

Carter  v.  Worrell,    751 

Cascaden's    Estate,    550 

Case  V.  Hall,    078,    754 

Casey  v.   Casey,   6V4 

Cash  V.  Lust,  97,  344,  409 

Cashman's  Estate,  461,  462,  468 

Cassilly  v.  Meyer,  491 

Cassell  V.  Vernon,  89 

Cassem   v.   Kennedy.   679 

Cassidy  v.   Hynton,   576 

Cassmore,  Goods  of,   183,   186 

Castle    V.    Fox.    142 

Castor  V.  Jones,  57 

Cates  V.  Gates,  49,  52 

Catlett  V.   Catlett,   1.58,   175,   181 


1004 


TABLE  OF  CASES. 


(References  are 

Caulfield   v.   Sullivan,   341 
Cauvien's    Succession,   241 
Cavalry's  Estate,  548,  635,  636 
Cave  V.  Holford,  278 
Caven  v.  Agnew,  333,  404 
Caverlye's  Estate,  90 
Cavett's  Appeal,   173 
Caviness  v.  Rushton,   70 
Cawley  v.  Knapp,  58 
Cawley's    Appeal,    44,    69 
Cawley's  Estate,  67 
Chace   v.   Chace,   287 
Chace  v.  Gregg,  485,   631,  715,  725 
Chace  v.  Lamphere,  488 
Chaddick  v.  Haley,  428 
Chadwick  v.  Chadwick,  508 
Chadwick  v.  Livesey,  646,  654 
Chadwick  v.  Tatem,  482,  729 

Chafee  v.  Maker,  554,  657,  669, 
794 

Chaffee  v.  Baptist  Convention,  174 

Chafin's    Will,    111 

Chamberlain   v.   Berry,   737 

Chamberlain  v.  Chamberlain,  31, 
35 

Chamberlain  v.  Taylor,  707 

Chamberlayne  v.  Brockett,  626, 
640,  642 

Chambers  v.  Chambers,  509,  602 

Chambers  v.  Higgins,  25,  539 

Chambers  v.  McDaniel,   162,  166 

Chambers  v.  Tulane,    692 

Chamblee  v.  Broughton,  564,  820 

Champion,   In   re,    309 

Chaney  v.   Missionary   Soc,   65 

Chandler  v.  Barrett,  96,  109,  384 

Chandler  v.  Ferris,  97 

Chandler  v.  Jost,  132,  405,  406,  426 

Chandler  v.  Mills,   614 

Chandler's  Appeal,  479 

Chappell  V.  Society,  819 

Chappell  V.  Trent,  97,  116,  123.  125. 
126,  133,  175,  208,  380,  385,  388, 
398,  400,   405,  406,  418,   429 

Chapin  v.  I'arker,  269,  545,  657 

Chapman  v.  Chapman,    668 

Chapman  v.  Dismer,  284 

Chapman's  Will,   343 


to  sections.) 

Charch  v.  Charch,   136,  715 
Charlemont  v.  Spencer,  92 
Charleston,  etc.,  Ky.  Co.  v.  Hughes, 

614 
Charlton  v.  Miller,  285 
Charman  v.  Charman,  278 
Charter  v.  Charter,  813,  819 
Chase  v.  Warner,    752 
Chase  v.  Cartwright,  689 
Chassaing  v.   Durrand,   673 
Chase  v.  Kittredge,  215,  222 
Chase  v.  Ladd,  576 
Chase  v.  Lackerman,  463 
Chase  v.  Peckham,  545 
Chase  v.  Stockett,    162,    335,    481, 

492,  640,  648 
Chavez  v.  Chavez,  52 
Cheatham   v,  Gowar,   546 
Cheatham  v.   Hatcher,  218 
Cheese  v.  Lovejoy,  252,  264 
Cheever    v.    North,    261,    270,    273, 

310,   344,   438,   441.  449,  453 
Cheney  v.  Plumb,  506 
Cheney  v.  Selman,  551 
Cherbonnier  v.  Goodwin,  661 
Chesebro  v.  Palmer,  566 
Cheshire  v.   Purcell,  462 
Chess's  Appeal,  145,  467 

Chester    County    Hospital    v.    Hay- 
den,  771 

Chicago  Title  &  Trust  Co.  v.  Brown, 
341 

Chichester  v.  Quatrefages,  311 

Chifferiel,   In  re.  269 

Chilcott's  Estate,  310,  311 

Children's  Aid  Society  v.  Loveridge, 
362 

Childs  V.  Eussell,  549 

Chinery,    In    re.    532 

Chipman  v.  Montgomery,  806 

Chisholm  v.  Ben,  222,  441,  450 

Chrisman  v.  Chrisman,  97,  312,  382 

Chrisman  v.  Wyatt,  52 

Christian,  Goods  of,  219 

Christie  v.  Christie,  468 

Christmas  v.  Whinyates,  449 

Christy  v.  Badger,  487 

Christy  v.  Christv.  461 


TABLE  OF  CASES. 


1005 


(References  are 

Christoflferson  v.  Pfennig,  659 

Chubbock  v.  Murray,  597 

Church  V.  Church,  543 

Church  V.  Crocker,  284 

Church,    Central  M.    E.,   v.   Harris, 

580 
Church  V.  McLaren,  719,  730 
Church  V.  Shively,   649 
Church  V.  Sniitli,  153 
Church  V,  Trustees,   640    . 
Church  of  Jesus  Christ  of  the  Lat- 
ter   Day    Saints    v.     The    United 
States,  655 
Church  V.  Warren  Mfg.  Co.,  489 
Chwatal  v.   Schreiner,  r2,  526 
Cilley  V.   Patten.   227,   315 
Cilley,  In  re,  315 
Cissell  V.  Cashell,  752 
Citizens'  Bank  &  Trust  Co.  v.  Bradt, 

613 
Chaffey  v.  Ledwith,  97,  406,  429 
Claflin   V.   Ashton,   470 
Claflin  V.  Claflin,  669 
Clamorgan  v.  Lane,  468 
Clapp    V.    Fullerton,    94,    105,    120, 

344,  392 
Clapton   V.   Buhner,   547 
Clark  V.  Benton,  545 
Clark  V.  Cammann,  744 
Clark  V.  Clark,    2,    145,    194,    196, 

696,  710,  711 
Clark  V.  Cordry,  78 
Clark  V.  Dunnavant,  223 
Clark  V.  Elborn,  244 
Clark   V.    Ellis,    113,    312,   323.    378 
Clark  V.  Hershy.  727 
Ciark  V.  Hill.  Oil 
Clark  V.  Hoskins,  193,  196 
Clark  V.  Jetton,    782 
Clark  V.  Marlow,  750,  751 
Clark  V.  Morison,  244,  424 
Clark  V.  Moi'ton,    441 
Clark  V.  Tennison.   6R1 
Clark  V.  Turner,  345.  435,  440,  441 
Clark's  Appeal,   28,   34 
Clark,  Goods  of,   173 
Clark,  In  re,  178,  618 
Clarke  v.  Clarke,  473,  757,  820 


to  sections.) 

Clarke  v    Scripps,  247 
Clarke  v.  Smith,   518 
Clarkson  v.  Pell,  467 
Clarkson  v.  Stevens,   288,  293 
Claussenius  v.  Claussenius,  323,  331 
Clay  V.  Smallwood,  691 
Clay  V.   Wood,    611,    684 
Clayson's  Will,  21 
Clayton  v.  Aikin,  7/6 
Clayton  v.  Drake,  552 
Clayton  v.  Liverman,  67 
Clayton  v.  Robards,  537 
Cleghorn  v.  Scott,  466,  551 
Clemens  v.  Heckscher,  595 
Clemens  v.  Patterson,  325 
Clement  v.  Hyde,  645 
Clements  v.  McGinn,  342,  423 
Clendening  v.  Clymer,  783 
Gierke  v.  Cartwright,  85 
Cleveland  v.  Cleveland,  608 
Cleveland  v.  Spilman,  173,  179,  204, 

561,  487 
Cleveland's    Estate,    Duke    of,    482, 

602 
CliiT's  Trusts,   160,  341 
Clift  V.  Moses,  702,  762,  764 
Clifton  V.  Clifton,   97,   102 
Clifton  V.  Murray,  117 
Cline  V.  Scott,  802,  804 
Cline,  In  re,  102,  105,  106,  333 
Clingan  v.  Micheltree,  247,  255,  261, 

279 
Clinton  v.  McKeown,  278 
Clough    V.    Clough.    323,    427 
Clow  V.  Plummer,  356,  357 
Clowes,  In  re,  483 
Clyde  V.   Simpson,   752 
Coakley   v.   Daniel,    462 
Coane  v.  Harned,  759 
Coapland  v.   Lake,   792 
Coates  V.   Hughes,   296 
Coates  V.  L.  &  N.  Ry.  Co.,  692 
Coats   V.   Johnson,    333 
Cobb  V.  Hanford,  70,  315 
Cobb's  Estate,   341 
Cochran    v.    Elwell,    691 
Cochrane    v.    Schell,    507,    637,    638 
Cochran  v.  Young,  325,  340 


1006 


TABLE  OF  CASES. 


(Keferences  are  to  sections.) 


Cock   V.   Cooke,   59 

Cockayne,    Goods    of,    276 

Cockran's   Will,    384 

Coddington  v.  Jenner,  348,  434,  440, 
442 

Codman  v.  Kreli,  34 

Codrington  v.  Lindsay,  726 

Cody  V.  Bunn,  461,  473 

Coe  V.  Kniffen,  244 

Coffin  V.  Coffin,  218,  226 

Coffin  V.  Otis,  268 

Coffman  v.  Coffman,  46 

Cogbill  V.  Cogbill,  254,  264 

Cogdell  V.   Widow,  Heirs,   etc.,    148 

Coggeshall  v.  Home  for  Friendless 
Children,    153 

Coggins  V.  Flythe,  545 

Coghill  V.  ivennedy,  118,  120,  122, 
125,  126,  128,  129,  400,  414,  423, 
425,  429 

Coghlan  v.  Dana,  812 

Cohen's  Will,   183 

Coit  V.  Comstock,  640 

Coit  V.  Patchen,   105 

Coke   V,   French,    344 

Colby  V.  Doty,  594 

Colcord  V.  Conroy,  284 

Cole  V.  Cole,  577 

Cole  V.  Fitzgerald,  492 

Coleman  v.   Camp,   462 

Coleman    Bush    Investment    Co.    v. 

Figg,  536 
Coleman  v.  Robertson,  96,  97 
Coleman  v.   Sumrall,  808 

Coletaan's    Estate,    6G,     125,    331, 

409,  428 
Coleman,  Goods  of,  252 
Coleman's  Will,  388 
Coles  V.  Avers,    676 
Coles  V.  Coles,  483,  486 
Coles  V.  Terrell,  731 
Collagan  v.  Burns,  244,  450 
College  V.  McKinstry,   190 
Collett  V.  Cook,  723 
Collier    v.    Collier,    269,    462,    466, 

491,  516,  734 
Collier   v.   Grimesey,  491,   668,   692. 
700 


Collier's  Will,  659 

Collins  V.  Burge,  681 

Collins    V.    Collins,    330,    436,    466, 

566,  574,  674,  733,  744 
Collins  V.  Elstone,  267 
Collins  V.  Eead,  755 
Collins  V.  Smith,   145 
Collins  V.  Thompson,  594 
Collins  V.   Wickwire,  466,  576 
Collins  V.  Williams,  5/ 9,  580 
Collins,   Goods   of,    187 
Collyer  v.  Collyer,  437 
CoUup  V.  Smith,  278 
Colston  V.   Bishop,   466 
Colt  V.  Hubbard,  659 
Colton  V.   Burkelraan,   691 
Colton  V.  Colton,  2,  461,  612 
Columbia    Ave.    etc.    Co.    v.    Lewis, 

691 
Col  vert  V.  Wood,  720 
Colvin   V.   Warford,   273.  277 
Coltsman  v.  Coltsman,  549 
Comassi's  Estate,  284,  290 
Combs  V.  Jolly,  44,  218,  227 
Comb's  Appeal,   191.   194 
Comer  v.   Comer,   45,  49,   56 
Comly's  Estate,  515,   570,  618 
Commonwealth  v.  McCarthy,  370 
Commonwealth  v.  Thomas,    323 
Commonwealth  v.  Trefethen,   437 
Compton  V.  JMitton,    203,   223,    210, 

226,   219 
Compton  V.  Pierson,  93 
Comstock  V.  Society,  382,  423 
Conant  v.  Bassett,   668 
Conant  v.  Palmer,    470 
Conboy  v.  Jennings,  186 
Condeli  v.  Glover,  786 
Condit  V.  De  Hart,  690 
Conger  v.   Lowe,   684 
Congregational   Society  v.   Hale.   36 
Congregational,  etc.  Missionary  So- 
ciety V.  Van  Arsdall,  649 
Congreve  v.  Palmer,   554 
Conklln   V.    Davis,    556.    643.    647 
Connelly  v.  Beal,  96,  257,   329,   368 
Connelly  v.  Sullivan,    327 
Connor  v.   Brashear,   241 


TABLE  OF  CASES. 


1007 


(References  are  to   sections.) 


Conoly  V.  Gayle,   190 

Conover   v.    Fisher,    613 

Conrad  v.  Douglass,  49 

Conrad  v.  Long,  675,  681 

Conron  v.   Conron,  758 

Contine  v.   Brown,  575 

Convay's    Estate,    537 

Converse  v.  Converse,  96 

Converse  v.  Starr,   315,    323,   348 

Converse  v.  Wals,    294 

Convey's  Will,  203,  227 

Conway  v.  Ewald,  378 

Conway  v.  Vizzard,   132 

Conway's   Will,    164,   221 

Cooch  v.  Cooch,  331,  346 

Cook  V.  Adams,    137 

Cook  V.  Bucklin,  595 

Cook  V.  Cook,   689 

Cook  V.  Couch,  710,  712 

Cook  V.  Dyer,  576 

Cook  V.  Hayward,    668 

Cook  V.  Hohnes,   462 

Cook  V.  Lambert,    161 

Cook  V.  Lanning,    476 

Cook  V.  McDowell,   668 

Cook  V.  Winchester,  213 

Cooke  V.  Cooke,  240 

Cooke  V.  Fidelity  Trust,  etc.  Com- 
pany, 713 

Coombs,  Goods  of,   187 

Coomes  v.  Clements,  137 

Coonrod  v.  Coonrod,  470,  752 

Coop  v.  Coop,  55 

Cooper  V.  Brockett,  222,  254,  431, 
432 

Cooper  V.  Cooper,  473,  551,,  971, 
711,  726,  729 

Cooper  V.  Haines,  698 

Cooper  V.  Pogue,  240,  571 

Cooper  v.  Remsen,   681 

Cooper  v.  Wyatt,  685 

Cooper's  Estate,  278,  607,  629 

Cooper,  Goods  of,  61 

Coots  V.  Yewell,  466 

Coover's  Appeal,  737 

Cope  V.  Cope,  48 

Cope  V.  Farmer,  790 

Copehart  v.  Burrus,  497 


Copeland  v.  Copeland,  116,  554. 
Corballis  v.  Corballis,  774 
Corbitt  ,v.  Corbitt,  515 
,  Corbley  v.  Patterson,  516 
Corey  v.  Corey,  576 
Corey  v.  Springer,  594 
Corker    v.    Corker,    281,    283,    286, 

285 
Corley  v,  McElmeel,  312,  340,  343 
Corley   v.   Wayne  Co.   Prob.   Judge, 

312,  321,  323 
Cornelison  v.  Browning,  28 
Cornelius  v.  Malone,   332 
Cornelius'  Will,   178,  179,  209 
Cornell   v.   Lovett,   681 
Cornwall  v.  Falls  City  Bank,  676 
Corn  well  v.  Isham,   1C4 
Corry  v.  Lamb,  713 
Corse  V.  Chapman,  637 
Corwine  v.  Corwine,  755 
Cory  V.  Lentner,  783 
Cosl>ey  V.  Lee,  515 
Cosgrove  v.   Cosgrove,   528 
Cost's  Succession,  765,  773 
Cote  v.  Van  Bonnhorst,  567 
Cotheal  v.  Cotheal,  284,  287 
Getting  v.  De  Sartiges,  39,  698 
Cottman  v.  Grace,  610 
Cotton  V.  Cotton,  533 
Cottrell's  Estate,  73 
Cottrell,  In  re,  223 
Couch  V.  Eastham,  816 
Couch    V.    Gentry,    23,    94,    97,    385 
Conchman   v.    Conchman,    326 
Coudert  v.  Coudert,  287 
Coughlin  V.  Poulson,  395 
Coulson   V.   Alpaugh,   59,   581,   610, 

611 
Counts  V.  Wilson,  335,  439 
Courter  v.  Stagg,  681 
Cousens  v.  Advent  Church  of  Bidde 

ford,  315,  322 
Cousino  v.  Covisino,  570 
Covar  v.  Cantelon,  597 
Cover  V.  Stem,  55 
Covert  V.  Sebcrn,    4)0,    487 
Coward,   Goods   of,   89 
Cowen  V.  Adams,  786,  787 


1008 


TABLE  OF  CASES. 


(References  are  to  sections.) 


Cowherd  v.  Kitchen,  759 

Cowing  V.  Dodge,  564 

Cowles  V.  Cowies,  547 

Cowles  V.  Henry,  599 

Cowley  V.  Knapp,  676 

Uox  V.  Cox,   77,   323 

Cox  V.  Handy,    461,    656,    658,    676 

Cox  V.  Lumber  Co.,  361,  362 

Cox  V.  Rogers,   727 

Cox  V.  Von  Ahlenfeldt,  139 

Cox  V.  Wills,  59,  605,  612 

Cox's    Estate,    321,    389,    397,    466 

Coxen  V.  Rowland,  698 

Coyte,  In  re,  252 

Cozzens  v.  Jamison,   278,   279 

Cozzen's  Will,  180 

Craft's  Estate,  284,  340 

Craig  V.  Beatty,  341 

Craig  V.  Conover,    722 

Craig  V.  Leslie,   150 

Craig  V.  Southard,     96,     330,     368, 

382,   383,   390,   400 
Craighead  v.  Given,  507 
Crain  v.  Wright,  561 
Craine  v.  Edwards,  341 
Cranch   v.   Davis,   796 
Crandall's  Appeal,   366,   385,   426 
Crandell  v.  Barker,   31 
Crane  v.  BoUes,   618,   668,   674,  693, 

701 
Crane  v.  Doty,  467 
Crane  v.  Reeder,   150 
Crane's  Will,  25,  314,  611 
Craven   v.   Winter,   52 
Cravens  v.  Faulconer,  203,  205,  216 
Craw^ford  v.  Forest    Oil    Co.,     567, 

570 
Crawford  v.  INIcCartliy,  754,  768 
Crawford  v.  Wearn,  565 
Crawford  v.  Thomas,  344 
r-awford,  In  re,  314 
Crawford's  Will,  221 
Crawshay,  In  re,  684,  691 
Cray  v.   Herder.   802 
Creesy  v.  Wills,  766 
Cremorne  v.  Antrobus.  492 
Crenshaw  v.  Xohnson,  329,  333,  366, 

425 


Crerar  v.  Williams,  461,  619,  640, 
641,  646,  700,  744,  808,  809 

Cresap   v.   Cresap,    461,   576,   619 

Cressey   v.   Wallace,   624 

Cressinger  v.   Welch,    144 

Cressler's  Estate,  575,  613 

Creswell  v.  Creswell,  194 

Creveling  v.  Jones,  473,  799 

Crew  v.  Dickson,  576 

Crew  V.  Pratt,  601,  636 

Cribben  v.  Cribben,  729 

Crider   v.   Shelby,   54 

Crippen  v.  Dexter,   319,   324,  339 

Crisp  V.  Crisp,  658 

Crist  V.  Schank,  664 

Crocker  v.  Balch,  327,  344 

Crocker  v.  Chase,  400 

Crocker  v.  Smith,  53 

Crockett  v.  Davis,  333,  389 

Crockett  v.  Robinson,   564 

Croft  V.  Croft,   196 

Croft,   In  re,   691 

Crofut  V.  Layton,  70,  72,  77 

Crolly  V,  Clark,  28 

Cronan  v.  Holland,  802 

Groom  v.  Herring,  515 

Crook  V.  Brooking,  524 

Cropley  v.  Cooper,  659,  663 

Crosby  v.  Mason,  471 

Crosland  v.  Murdock,  312 

Cross    V.    Kennington,    750,    755 

Cross  V.  U.   S.  Trust  Co.,  35 

Crossett  v.  Clements,  751 

Crossman  v.  Crossman,  269,  432,  433 

Crosson  v.  Dwyer,  523,  806 

Crow  V.  Crow,  554 

Crowell  V.  Kirk,  392 

Crowninsliield  v.  Crowninshield, 
382 

Crowley  v.  Crowley,  203 

Crowley  v.   Hicks,   692 

Croxall's  Estate,  647 

Crozier  v.  Bray,  269,  463,  465,  581 

Crozier    v.    Cimdall,    550,    563,    594 

Crudup  V.  Holding,  689 

Cruikshank  v.  Home  for  the  Friend- 
less, 507,  744 

Cruikshank   v.    ParKer,    689 


TABLE  OF  CASES. 


1009 


(References  are  to  sections.) 


Crum  V.   Sa\vyer,  281,   284 
dumb,  In  re,   47 
Cruse  V.  Axtell,  643 
Crusoe  v.  Butler*  31 
Crutcher  v.  Crutcher,  446 
Cudney  v.  Cudney,  423 
Culley  V.  Doe,  144,  148 
Culp  V.  Culp,   333 
Culp  V.  Lee,   545,   554 
Cumberland   /.  Cardington,  706 
Cummings  v.  Cummin'gs,  555,  607 
Cummings  v.  Daniei,  137 
Cummings  v.  Plummer,  523 
Cummings    v.     Stearns,    551,   657 
Cumming's  Estate,  497 
Cummins  v.  Cummins,  52,  312,  313, 

331 
Cundiff  V.  Seaton,  485 
Cunningham  v.  Cunningham,      213, 

749.  808 
Cunningham  v.  Pariver,  673,  704 

Cunningham  v.  Simpson,    719 

Cunningham  v.  Tulej^  341 

Cunningham's  Estate,  137,  710,  720, 

724,   727,   737 
Cunningham,  Goods  of,  215 

Cunningham,  In  re,  217 

Cuno,  In  re,   61,  696 

Curd  V.  Field,  752 

Cureton  v.  Taylor,  190,  341 

Curling  v.  Curling,  645 

Cur  ran  v.  Gieen,  607,  803 

Curre  v.  Bowyer,  278 

Currell   v.   Villars,    357 

Currie  v.  Currie,   382 

C'nrrie  v.  Kimberley,  774 

Curtis  V.  Underwood,  319 

Curry  v.  Pile,  799 

Cushing  V.  Alyivin,  142 

Cushing  V.  Burrell,  470 

Cushing  V.  Spakl.ng,  684 

Cushing's  Will,   007 

Cushman  v.  Horton,  514 

Cuthbertson's   Appeal,   414  • 

Cutler  V.  Cutler.  2.3,   132 

Cutter  V.  Butler,  89.  92,  284 
Cutting  V.  Cutting,  577 


Dado's  Estate,  802 

Dailey  v.  New  Haven,  644 

Davidson  v.  Cook,  749 

Dale  V.  Dale,  406,  409,  414 

Dale  V.  White,   467 

Dale's  Appeal,  394,  409,  413,  424 

Dale,  In  re,  226 

Dalrymple  v.  Gamble,  141,  142 

Dal rym pie's  Estate,  329 

Dal  ton   V.    Wicklitle,  241 

Daly  V.  Daly.   333,  397 

Daman   v.   Bibler,  406 

Damman  v.  Damman,  249,  254 

Dammert  v.  Osborn,  31,  35,  643 

Damon  v.  Damon,  CO,  64 
Dan  V.   Brown,  244 

Dana    v.    Murray,    026,    632,    691 

Dancer  v.  Crabb,  276 

Danforth  v.  Talbot,  659 

Daniel  v.  Daniel,  98,  676 

Daniel  v.  Fain,    643 

Daniel  v.  Hill,    49,    53,    382,    414 

Daniel  v.  Veal,  53 

Daniels  v.  Pratt,  136 

Darby  v.  Mayer,   312 

Darcy  v.  Kelly,  643 

Darden  v.  Harrill,  742 

Darling  v.  Blanchard,  656 

Darling,   In  re,   643,   647 

Darlington  v.  Darlington,  488.  561 

Darlington.  Earl  of.  v.  Pulteny.  67 

Darlington's  Estate,  414 

Darnell  v.  Buzby,  223 

D'Arusnient  v.  Jones.  341 

Dascomb  v.  Marston,  646 

Daugherty  v.  Rodgers,  818 

Dautevivo's  Succession,  242 

Davenhill  v.  Fletcher,  776 

Davenport  v.  Hassel,  521 

Davenport    v.    Kirkland.    401.    402. 
014,    026,    703 

Davenport  v.  Savgeant.  758 

Daveson.  In  re,  629.  032 
Davidson  v.  Coon.  747.  755 
Davidson  v.  Davidson.  75,  79,  723 


1010 


TABLE  OF  CASES. 


(References  are  to  sections.) 


Davidson  v.  Davis,  723 

Davie  v.  Davie,  315 

Davie  v.  VVynn,   551 

Davies  v.  Davies,  449 

Davies,  In  re,  130,  500 

D'Avignon's   Will,   208 

Davis  V.  Angel,  675 

Davis  V.  Badlam,   722 

Davis  V.  Barnstable,    645 

Davis  V.  Boggs,  470,  471,  610 

Davis  V.  Calvert,    385,   411 

Davis  V.  Close,  V80 

Davis  V.  Cofl'man,   815 

Davis  V.  Corwine,  466 

Davis  v.  Crandell,   803 

Davis  v.  Davis,   196,  467,  506,  582, 

731 
Davis  V.  Elliott,  379 
Davis  V.  Fogle,  290 
Davis  V.  Hardin,  673 
Davis  V.  Hoover,   470 
Davis  V.   Hutchings,   506,   746,  807, 

808 
Davis  v.  Jones,  73 
Davis  V.   King,   290 
Davis  V.  Kirksey,  340,  576,  695 
Davis  V.  Mailey,   611 
Davis  V.  Richardson,  577 
Davis  V.  Semmes,    219 
Davis  V.  Sigourney,  434,  449,  453 
Davis  V.  Stambiugh,   244 
Davis  V.  Strange,    127 
Davis  V.  Williams,  561 
Davis'   Will,    66,    67,   68,    109,   240, 

314,   531 
Davison  v.  Gibson,  41 
Davison  v.  Rake,  803 
Daw?on  v.  Dawson,  269 
Dawson  v.  Schaefer,    550,    555,    659 
Dawson  v.  Smith,  273,  437 
Dawson,  In  re,  629 
Day  V.  Day,  47,   270,  273,   453 
Day  V.  Floyd,  341 
Day,   ex  parte,   66,   67 
Dayger,    In    re,    183 
Dayman  v.  Dayman,  374 
Dayton   v.   Phillips,   632 
Deadrick  v.  Armour,  466,  576 


Dean  v.  Dean,  227,  383,  578 
Dean  v.  Lowenstein,  692,  750 
Dean  v.  Mumford,    511,    622,    636, 

787,  808 
Dean  v.  Ntgley,   132,  411 
Dean  v.  Rounds,   765,   767 
Dean  v.  W^inton,  507,  663 
De  Bajligethy  v.  Johnson,  53 
De  Beauvoir  v.  De  Beauvoir,  515 
DeCamp  v.  Dobbins,  36,   153,  644 
Deck  V.   Deck,  428 
Decker  v.  Decker,  461.  462,  487,  497, 

816 
Deegan  v.  Wade,  637 
Defoe  V.  Defoe,  127,  128,  410 
Defreese    v.     Lake,     565,    570,    720, 

820 
De  Geofroy  v.  Riggs,  150 
Degman  v.  Degman,  576 
De  Graff  v.  Went,  151 
De  Grandmont  v.  Societe,  139 
D?haven   v.   Sherman,   599 
Deiter  v.  Shafter,  544 
Delafield  v.  Parish,  97,  98,  101,  255, 

277,   382,   383,  414 
Del    Escobal's    Succession,    241 
Delgado   v.    Gonzales,   415 
Delmar's    Charitable   Trust,    619 
Delany  v.  McCormack,  547,  739 
De  La  Rue,  In  re,  314 
De  La  Saussaye,  Goods  of,  269.  314 
De  las  Fuentes  v.  McDonald,  315 
De  Laveaga's  Estate,  268,  269,  674, 

800 
Dempsey  v.  Lawson,  262,  268 
Dempsey  v.  Taylor,    475 
Den,  Thomas    v.  Ayers,  312 
Den  V.  Drew,  476 
Den  V.  Johnson,    47 
Den  V.  Mitton.  228 
Den  V.  Pa;yme,  477 
Den  V.  Schenck,    561 
Den  V.  Taylor,    473 
Deneken,  In  re,  802 
Denfield,  In  re,  604,  610,  615.  681, 

820 
Denlinger's  Estate,  550 
Denn  v.  Bagshaw,  658 


TABLE  OF  CASES. 


1011 


(References  are  to  sections.) 


Denne  v.  Wood,  196 

Denning   v.    Butcher,   85,    127,    362, 

388,   390,  406,  416,  421,  426,  427 
D.nnis  v.  Holsapple,  48,  162,  169 
Dennis  v.  Weekes,  400,  423 
Dennis'  Estate,  755 
Dennis,  In  re,  307 
Denson  v.  Beazley,  107 
Denton  v.  Franklin,  203 
Denton,  In  re,  676 
Denny  v.  Kettle,  656 
Denny  v.   Pinney,  226 
Dennyssen  v.  Mostert,  69 
De  Silva  v.  Supreme  Council,  136 
De   Silver's   Estate,  466,  467 
Despard  v.  Churchill,  33,  35 
De  Peyster  v.  Machiel,  684 
Dcquindre  v.  Williams,  341 
Derby  v.  Derby,  767,  768 
Derickson  v.  Garden,  595,  675 
Derinzy  v.  Turner,   185 
Derse  v.  Derse,  576 
Deslonde  v.  Darrington,  318 
De  Treville  v.  Elis,  591 
Deupree  v.   Deupree,  223 
De  Vaughn  v.  De  Vaughn,  564 
De  Vaughn  v.  Hutchinson,   28,   565 
De  Vaughn  v.  McLeroy,  802 
Deveeraon   v.   Shaw,   806 
Devlin  v.  Commonwealth.  341 
Devocmon  v.  Kuykendall,  793 
Dew  V.  Clark,  94,  104,  106,  107 
Dew  V.  Kuehn,  562 
Dew  V.  Reid,  328,  329 
Dewey  v.  Dewey,  205,  206,  210,  216 
Dewey  v.  Morgan,  461,  476,  561 
Dewey's  Estate,  602,  607 
De  Witt  V.  Yates,  799 
De  Wolf  V.  Middleton,  29,  520,  547, 

548.    549,    .594 
Dexter  v.  Evans,  612 
Dexter  v.  Inches,  526 
Dezendorf  v.  Humphreys,  624 
Dias  V.  De  Livera,  69 
Dichie   v.   Carter,    227,   423 
Dicke  V.  Wagner,  322,  340,  511 
Dicken  v.  McKinley,  74,  75 
DicVerman    v.    Eddinger,    748 


Dickey  v.  Vann,   28,   337,   357 
Dickinson  v.  Dickinson,  47,  160,  200, 

390,  481 
Dickinson  v.  Henderson,  602 
Dickinson  v.  Overton,   799 
Dickinson  v.  Swatnian,  272,  276 
Dickinson  v.  United  States,  154 
Dickison  v.  Dickison,   525,   544 
Dickison   v.   Ogdcn,   622,   662 
Dickson   v.    Field,    761 
Dietlenbach   v.   Grece,   112,   415 
Diefendorf  v.  Diefendorf,  52 
Diehl  V.  Rogers,  176,  199,  360 
Diez's  Will,  66,  67.  68,  170 
Dildine  v.  Dildine,  543 
Dill  V.  Dill,  470 
Dill  V.  Wisner,  806 
Dillard  v.  Dillard,  496,  577 
Dillard  v.  Dillard's  Ex'rs,  89,  93 
Dillon  V.  Faloon,  698 
Dills  V.  Adams,  501 
Dilworthy  v.  Gusky,  562 
Dimmiek  v.  Patterson,  663 
Dixon  V.  Bentley,  003 
Doane  v.  Hadlock,  276,  299,  .301,  302 
Doane  v.  Mercantile  Trust  Co.,  317 
Dobie  V.  Armstrong,  105,  132 
Dockvun  V.   Robison,   234,  236 
Dodge  V.  Finlay,  224 
Dodge  V.  Gallatin,  142,  148,  489 
Dodge  V.  Williams,  645 
Dodge's   Appeal,   513 
Dodson  V.  Sevans,  575,  580 
Doe  V.  Barford,  282 
Doe  V.  Considine.  467 
Doe  V.  Edlin,   283 
Doe  V.  Evans,  276,  277 
Doe  V.  Frost.    549 
Doe  V.  Harris,,    2'^'^ 
Doe  V.  Palmer,  431,  433 
Doe  V.  PaUison,   170 
Doe  V.  Pearson,  684 
Doe  V.  Perryn,  548 
Doe  V.  Pratt,  549 
Doe  V.  Smith,   564 
Doe  V.  Staples,   284 
Doebler's  Appeal,  473,  564 
Doe  d.   Davis  v.   Davis.   219 


1012 


TABLE  OF  CASES. 


(References  are  to  sections.) 


Doe  d.  Perkes  v.  Perkes,  261 

Doe  d.  Kead  v.  Harris.  247 

Doe  d.  Wright  v.  Manifold,  211 

Doe   d.    York   v.    Walker,    142 

Doehrel  v.  Hilhner,   151 

Doherty  v.  Gilmore,   127,   132,  405, 

409,    423,    426 
Doherty  v.  O'Callaghan,  388 
Dobson,  In  re,  63 
Donier  v.  Seeds,  277 
Domestic     Missionary     Society     v. 

Eells,   312,   349 
Domestic,    etc.,    Missionary    Society 

V.   Gaither,    649 
Dominick  v.  Michael,   702 
Donald  v.  Nesbit,  53 
Donald  v.  Unger,   234 
Donaldson,  Goods  of,  233 
Donegan   v.    Wade,    683 
Donges's  Estate,  293,  813 
Donley  v.  Shields,  576 
Donnelly  v.  Broughton,  370 
Donohoo  V.   Lea,  278 
Donohue  v.  Donohue,  561 
Doran  v.  Piper,  696 
Dore  V.  Torr,  547 
Dorin  v.  Dorin,  522 
Dorion  v.  Dorion,  140 
Dorr  V.  Johnson,  663 
Dorries's  Succession,  241 
Douce,  Goods  of,   173 
Dougherty  v.  Dougherty,  61,  62 
Dougherty  v.  Moore,  56 
Doughten  v.  Vandever,  461,  487,  538, 

645,  647 
Douglass  V.  Douglass,   769 
Douglass  V.  James,  524 
Douglass  V.  Miller,    313 
Douglass  V.  Sharp,  576 
Douglass's    Estate,     98,     127,     129, 

331,  378,  416 
Dower  v.  Church,  325 
Do^\^les  v.  Long,  572 
Downie's   Will,    211.    213,   227,    344 
Downing  v.  Bain,  467 
Downiing  v.  .Johnson,  576 
DoAvning  v.  Marshall,   643 
Dowson  V.  Gaskoin,  406 


Doyle  V.  Doyle,   137 

Doyle  V.  Whalen,  655 

Drake  v.  Drake,  526,  694 

Drake  v.  Lanning,  72,  73 

Drake  v.  Paige,   659 

Drake  v.  Wild,  723 

Drake's  Appeal,  129,  419 

Draper  v.  Morris,  729,  730 

Dravo  v.  Seebolt,  611 

Drennan  v.   Douglass,  72 

Drennan's   Appeal,   596 

Drew  V.  Drew,  473 

Drew  V.  Wakefield,  482,  529,  744 

Drew,  In  re,  511 

Drusadoruv.  Wilde,  561 

Drury   v.   Connell,    189,   210,   211 

Dryden   v.   Owing,   767 

Duclos  V.  Benner,  579 

Dudgeon,  In  re,  619 

Dudley  v.  Pigg,   731 

Dudley  v.  Wardner,  434 

Dudley  v.  Weinhart,  61 

Dufar  V.  Croft,  117 

Duff  V.  Duff,  321 

Duffie  V.  Corridon,  215,  222 

Duffield  V.  Morris,  94 

Duffield  V.  Pike,  700,  773,  791 

Duffield  V.  Robeson,  104 

Dufour  V.  Pereira,  72 

Dugan  V.  Northcutt.  319.  325.  331, 
339 

Duggan  V.  Duggan,  666 

Duggan  V.  Slocum,  642,  643,  646 
Duggins,  Goods  of,  220 
Dukes    V.    Faulk,    554,    557,    675 
Dulany  v.  Middleton,  473,  540,  659, 

744.   746 
Bull's  Estate,  466 
Duniont  v.  Dumont,  126 
Dunbar  v.  Woodcock,  596 
Duncan  v.  Duncan,  800 
Duncan  v.  Franklin  To^vnship,  776 
Duncan  v.  Philips,   470,   473,   681 
Duncan  v.  Stewart,  341 
Duncan  v.  Wallace,  747,  750.  755 
Dunford  v.   Jackson.   485,   494.   770 
Dunham  v.  Averill.  276,  277,  819 
Dunham  v.  Marsh,  477,  807 


TABLE  OF  CASES. 


1013 


f References  are  to  sections.) 


Dunham's  Appeal,  108 

Dunlap  V.  i*'aiit,   594 

Dunlap  V.  Robinson,   156,   382,   411 

Duiilap's  Appeal,  467 

Dunlop  V.  Dunlop,  175,  307 

Dunlop  V.   Watts,    180 

Dunn  V.  Bank,  53 

Dunn  V.  Cory,  522,  524,  546 

Dunn  V.  Renick,  773,  775 

Dunn's  Appeal,  91 

Dunning  v.  Burden,  572 

Dupont  V.  Du  Bose,  474,  566 

Dupuy  V.  Esnard,  241 

Durant  v.  Smith,  59,  611 

Durants   v.   Ashmore,   437,   449 

Durbin  v.  Redman,  513 

Durfee  v.  MacNeil,  513,  584 

Durfee  v.  Pomeroy,   637 

Durfee,  In  re,  676 

Durfour  v.  Pereira,  69 

Durham  v.  Northern,  162,  163,  311, 

Durham  v.  Smith,   94,    96,    97,   382 

Durling  v.  Loveland,  414 

Duryea  v.  Duryea,  281 

Dutch  Church  v.  Snock,  575 

Dutton  V.  Pugh,  546,  666,  700 

Duvale  v.  Duvale,  70,  72,  79 

Duvall's  Estate,  773 

Dwight  V.  Eastman,  572 

Dwyer  v.  Mapother,  608 

Dye  V.  Beaver    Creek    Church,    576, 

643,  645 
Dye  V.  Dye,   53 
Dye  V.  Young,  423,  401 
Dyer  v.   Crawford,   541 
Dyer  v.  Dyer,  218 


E 


Eager  v.  Whitney,  069 

Eames      v.      Protestant      Episcopal 

Church.  771 
Earhart,  In  re,   315 
Earhart's  Succession,  28 
Earl  V.  Rowe,  561 
Early  v  Benbow,  799 
Earnshaw  v.   Daly,   631 


Eastis    V.    Montgomery,    127,    131, 

133,   382,  414,   426,   473,   684 
Easton  v.  Huott,   151 
Easton's  Estate,  229 
Eaton  V.  Watts,  611 
Eberhardt  v.  Parolin,  59,  472,  474, 

611 
Ebey  v.  Adams,  700,  709 
Eby's   Appeal,    515 
Eckersley  v.  Piatt,  259 
Eckert  v.  Flowry,  130 
Eckert's   Estate,   668 
Eckford  v.   Eckford,   460,   487,   488, 

809,   810,   819 
Eckstein  v.  Radl,  138 
Eddings  v.  Long,  515 
Edelen  v.  Hardy,  210 
Edens  v.  Miller,  488 
Edgar   v.   Edgar,    611,   806 
Edge  V.  Edge,  114 
Edgerly   v.    Barker,    467,    471,    551, 

636 
Edson  V.  Parsons,  65,  66,  70,  72,  81 
Edson's  Will,  413 
Edwards  v.  Davis,    331,    382 
Edwards  v.  Fincham,    117 
Edwards  v.  Rainier,    462,    494,    799 
Edwards  v.  Smith,  57 
Edward's  Appeal,  283 
Edward's  Estate,  638 
Edwards,  In  re,  594 
Egan,  In  re,  496 
Egbers    v.    Egbert,    333,    344,    369, 

382,  401 
Egbert  v.  Egbert,  382 
Eggers  V.  Eggers,  94 
Eggleston  v.  Speke,  275 
Eihrman  v.  Haskins.  820 
Eichelberger's  Estate,  595,  599,  710, 

787,  803,  804 
Einbecker  v.  Einbecker,  607 
Eisenbrey's   Estate,   788,    794 
Eisiminger  v.  Eisiminger,  482 
Eisner's  Estate,  602 
Ela  V.  Edwards,   161,  202.  205,  223 
Elcessor  v.  Elcessor,  390 
Elcock's  Will.   21 
Elder  v.  Elder.  461 


1014 


TABLE  OF  CASES. 


(References  are  to  sections.) 


Eldred  v.   Shaw,   572,   605,   623 
Eldridge  v.  Eldridge,  517,  669 
Eliot   V.   Carter,   431 
Eliot  V.  Eliot,  317 
Elkinton  V.  Brick,  218,  226,  382 
Elkinton  v.  Elkinton,  613 
Eller  V.   Lillard,   787,   789 
Ellerson  v.  Westcott,  687 
Ellicott  V.  Ellicott,  675 
Ellington  v.  Dillard,  234,  236 
Elliot  V.  Hancock,  750 
Elliott  V.   Brent,   196 
Elliott  V.  Tapp,  816 
Elliott's   Estate,   739 
Elliott,  In  re,  684 
Ellis  V.  Darden,  281,  284 
Ellis  V.  Davis.    315 
Ellis  V.  Dick,  269 
Ellis  V.  Ellis,  290,   332,   333,   334 
Ellis  V.  Smith,  203,  216 
Ellis  V.  Throckmorton,  585 
Ellis  V.  Woods,  461 
Elmore  v.  Mustin,  52,  53 
Elmsley  v.  Young,  547 
Elstner  v.   Fife,   760 
Elwell  V.  Convention,  317,  366,  538, 
539 

Elwes  V.  Causton,  774 

Ely's   Estate,   384 

Elyton  Land  Co.  v.  MeElrath,  575 

Embury  v.   Sheldon,  676 

Emeric  v.  Alvarado,  238 

Emerson  v.  Boville,  286 

Emerson,  Goods  of,  172 

Emery  v;  Babcock,  /2 

Emery  v.  Batchelder,  775 

Emery  v.  Burbank,  40 

Emery  v.  Darling,  72,  79 

Emery  v.  Haven,    698,    820 

Emery's  Appeal,  284 

Emory  College,  v.  Shoemaker,  640 

Emmert  v.  Hays,  92,  93,  487 

Eneberg  v.  Carter,  467,  702 

Endicott  v.  Endicott.  492 

Engle's  Estate,  600,  659,  676 

English  V.   English,   724 

Ennis  v.  Smith,  264 


Entwistle    v.    Meikle,    96,    97,    333, 

363,   394,   397,  402 
Epps  V.  Dean,  278 
Erhen   v.   Lorillard,   78 
Erhrisman  v.  Sener,  684 
Ernst  V.  Foster,  462,  463.  576,  817 
Ernst  V.  Northern   Bank,   659 
Ernst  V.  Shinkle,  684 
Errickson  v.  Fields,  100,  226 
Er\vin  v.  Erwin,   678,  752,   753 
Erwin    v.    Smith,    789,    820 
Eschback  v.  Collins,  254,  264 
Esman  v.  Esman,  t05 
Estep  v.  Armstrong,  702 
Estep  v.  Morris,  191 
Estes  v.  Bridgforth,  133,  363,  427 
Esty  v.  Clark.  529 
p]tohison  V.  Etchison,  209 
Ethridge  v.  Bennett,   127,  383,  388. 

390,   392,   393,   415 
Etter  V.  Armstrong,  85 

Eubank  v.  Smiley,  572 

Eustis  V.  Parker.  194 

Evans   v.   Anderson.   287,   289,   290. 
295 

Evans  v.  Arnold.  382 

Evans  v.  FolKes,  57  i 

Evans  v.   Godbold,  471 

Evans  v.   Hunter,  769 

Evans  v.  King,  565 

Evans  v.  Opperman,  461,  500 

Evans  v.   Pierson,   713 

Evans  v.  Price,  2 

Evans  v..  Smith,  G6,  67,  68 

Evans's  Appeal,  150,  248,  249,  252. 
571 

Evan's  Estate,  249,  517,  548 

Evan's   Will,   423 

Evangelical     Association's     Appeal, 
643 

Evansville,  etc.   Co.  v.  Winsor,  28, 
321,  323,  3.35,  357 

Everett  v.   Croskrey,   570,   729.   737 

Everhardt  v.  Everhardt,   173 

Ewell  V.  Tidwell.  315 

Ewing  V.  Barnes.  564,  684,  806 

Ewing  V.  Richards,  75 


TABLE  OF  CASES. 


1015 


(References  are 


Ewing  V.  Standefer,  570 
Ji,xton  V.  Hutchinson,  676 
Eyer  v.  Beck,  461 
Eynon,  Goods  of,  219 
Eyre  v.  Golding,  803 
Eyre  v.  Storer,  28 
Eyres'    Estate,    138 


F 


Fa  bens  v.  Fabens,  512,  515 
Fahnestock  v.  Fahnestock,  691,  700 
Fahnestock's  Estate,  467,  470,  544, 

676 
Fahy  v.  Faliy,  806 
Fairchild  v.  Bascomb,  392,  401 
Fairchild  v.  Buchell,   526 
Fairchild  v.  Crane,    593,    594 
Fairchild  v.  Edson,  25,  59,  466,  610, 

611,   619,    643 
Fairchild  v.  Marshall,  713,  726 
Fair's  Estate,  802 
Fallon  V.  Chidester,  295 
Falcon  v.  Flannery,  691 
Fallon's  Will,    325 
Fane,  Ex  parte,  89 
Fargo  V.  Miller,  52i,  547 
Fargo  V.  Squiers,  626,  636,  759,  763 
Farish  v.  WajTnan,  577 
Farley  v.  Farley,  223,  371 
Farmer    v.    Farmer,    23,    104,    132, 

333 
Farmer  v.  Spell,  777 
Farnsworth's    Will,    97 
Farnum  v.  Bascom,  776,  773,  775 
Farnum  v.  Boyd,  110,  333,  414 
Farnum   v.   Bryant,   726 
Farnum's  Estate,  506,  638,  787,  788 
Farr  v.  Thompson,  411 
Farrand  v.  Pettit,  636 
Farrar  v.  Fallestine,  489 
Farrar  v.  McCue,  692 
Farrell  v.   Brennan,   392 
Farrer    v.    St.    Catherine's    College, 

468 
Farrington  v.  Putnam,  153,  645 
Fassler  v.  Schriber,  388 


to  sections.) 

Foster   v.    Smith,   562 

Fatheree   v.   Lawrence,    223 

Faulk  V.  Dashiell,  091 

Faulkner   v.    The   XNational    Sailors' 

Home,   819 
Faulstich's  Estate,  544 
Fay  V.  Sylvester,  549 
Fayerweather  v.  Ritch    812 
Fearson  v.  Dunlop,  605 
Featherstone  v.  Robinson,  241 
Feit  V.   Van   Atta,   522 
Fellows  V.  Allen,  252,  284 
Fellows   V.   Miner,   647 
Fenton  v.  Emblers,  74 
Penn  v.  Death,   524 
Fenner  v.  McCan,  345 
Fenton's   Will,    103,    115,    332,    334, 

389,  390,  397,  402 
Ferguson's  Appeal,  737,  772,   773 
Ferguson,  In  re,  512 
Ferguson-Davie    v.    Ferguson-Davie, 

46,  59 
Ferer  v.  Pyne,  553 
Ferry's  Appeal,  473 
Fesler  v.  Simpson,  162,  166 
Festorazzi   v.   St.  Joseph's   Catholic 

Church  of  Mobile,  650 
Fetherman's  Estate,  618 
Fetrow  v.  Krause,  795 
Fetterman's  Estate,  614 
Fettiplace  v.  Gorges,  92 
Feuchter    v.    Keyl,    319,    320,    337, 

343 
Ffinch  V.  Combe,  251,  254,  298,  299 
Fickle  V.   Snepp,   166 
Fidelity  Trust  Co.'s  Appeal,  284 
Field    V.    Drew    Theological    Semi- 
nary, 626,  640,  641,  645 
Field   V.   Peckett,   492 
Field   V.    Peoples,    661 
Field's  Appeal,  208 
Fielden  v.  Ballanger,  787 
Fields  V.  Bush,  573 
Fields  V.  Fields.  555 
Fife  V.  Miller,  800 
Fifield  v.  Van  Wyck,  320,  610,  619, 

643,  683,  707,  819 
Finch  V.   Finch,   346 


1016 


TABLE  OF  CASES. 


(References  are  to  sections.) 


Finelite  v.  Sinnot,  484 

Fink  V.  Eggleston,  698 

Fink  V.  Leisman,  689 

Finlay  v.  King,  461,  681 

First   Society   of   M.   E.   Church   v. 

Clark,  640,  643 
First  National   Bank   v.   De   Pauw, 

594,  676 
Fischer's  Case,  323 
Fish,  In  re,  819 
Fishback  v.  Joesting,  517 
Fisher  v.  Banta,  700 
Fisher  v.  Bassett,  341 
Fisher  v.  Boyce,  331 
Fisher  v.  Keithley,  779,  782,  784 
Fisher  v.  Spence,     191,     192,    196, 

197,  198 
Fisher  v.  Wister,  562,  578,  580 
Fisher,  In  re,  269,  277,  470,  599,  602 
Fisher's  Will,  315,  332 
Fissel's  Appeal,  554 
Fisk  V.  Keene,  566 
Fiske  V.  Fiske,  726 
Fitch  V.  Brainerd,  90 
Fitch's  Estate,  405 
Fitzhugh  V.  Townsend,  548,  665 
Fitzpatrick  v.  Fitzpatrick,  816 
Fitzsimmons  v.  Johnson,  31 
Fitzsimmons    v.   Safe    Deposit  Co., 

345 
Flanagan  v.  Nash,  56 
Flannery  v.  Hightower,  476,  819 
Flannery's  Will,  173 
Flansburgh's  Will,  102 
Fleming  v.  Carr,  490,  498,  499 
Fleming  v.  Ray,  578,  579 
Flick  V.  Forest  Oil  Co.,  676 
Flickinger    v.    Saum,    561,    562 
Flinn  v.  Owen,  216 
Flint's  Estate,  386,  412 
Flintham  v.  Bradford,  273 
Flood  V.  Pragott,  186,  205,  206,  227, 

361 
Flora  V.  Anderson,  522,  525 
Florey  v.  Florey,  131 
Flournoy  v.  Johnson,  528 
Floyd  V.  Carow,  507,  508 
Floyd  V.  Floyd,  130,  428 


Floyd  V.  Herring.    312 

Fluck  V.  Rea,  112 

Flummerfelt    v.    Flummerfelt,   142. 

489,  803 
Fogarty  v.  Fogarty,  802 
Fogle  V.  Church,  79,  82 
Foley's  Estate,  315 
Folger  V.  Titcomb,  466 
Folks  V.  Folks,  333,  418 
I'oote  V.  Foote,  316 
Forbes    v.    Darling,    291,    293,    575, 

603,  613,  820 
Forbes  v.  The    Ft.  Scott    Board  of 

Education,  655 
Forbes,  In' re,  47 
Forbing  v.  Weber,  244,  257 
Ford  V.  Ford,  29,  35,  97,   162,  167, 

219,  259,  317,  461,  691,  705 
Ford  V.  Krambeer,  802 
Ford  V.  Ticknor,  690 
Ford's  Case,  199 
Ford,  In  re,  547 
Forman  v.  Woods,  676 
Forney  v.  Ferrell,  424 
Forney's  Estate,  279 
Forrest  Oil  Co.  v.  Crawford,  548 
Forrest  v.  Porch,  515,  556,  665 
Forsaith  v.  Clark,  223 
Forse  v.  Hambley's  Case,  284 
Forster  v.  Winfield,  59,  612 
Forsyth  v,  Forsyth,  674,  679,  698, 

699 
Forsythe  v.  Mintier,  473 
Fortescue  v.  Hennah,  79 
Fortune  v.  Buck,  197,  198 
Fosdick  V.  Hempstead,  643 
Foselman  v.  Elder,  58 
Foster  v.  Dickerson,  362,  428,  400, 

390,  389 
Fosher  v.  Guilliams,  719,  729 
Foster  v.  Hackett,  657 
Foster  v.  Wick,  659 
Foster's  Appeal,  409,  437,  449 
Fotheree  v.  Lawrence,  313 
Fouche's  Estate,  58,  186 
Fourdin  v.  Gowdey,  87 
Foveaux,   In   re,    653 
Fowe's  Estate,  102,  331 


TABLE  OF  CASES. 


1017 


(References  are 

Fowler  v.  Diihme,  676,  684 

Fowler  v.  IngersoU,  626,  636 

Fowler  v.  Stagner,  193,  217,  221 

Fowlkes  V.  Wagoner,  684 

Fox  V.  Fee,  327 

Fox  V.  Fox,  614 

Fox  V.  Gibbs,  643,  645,  647 

Fox     V.     Martin,     127,     132,     133, 

429 
Fox  V.  Senter,  136,  500,  598 
Fox's  Will,  154 
Fozer  v.  Jackson,  58 
Frame  v.  Thormann,  315 
France's  Estate,  491,  561 
Francis  v.  Grover,  249,  254 
Francis  v.  Wilkinson,  96 
Frank  v.  Unz,  573 
Franke  v.  Auerbach,  691 

Franke  v.  Sliiplcy,  97,  325 

Franke,  In  re,  138 

Frankes  v.  Weigand,  712,  723,  732 

Franks  v.  Chapman,  221 

Franklin  v.  Arnifield.  643 

Franklin  v.  Franklin,  188,  193,  362, 
540,  548 

Frausen's  Appeal,  281,  283 

Eraser  v.  Boone,  470 

Eraser    v.    Chene,    820 

Eraser  v.  Jennison,  329 

Eraser,   In  re,   314 

Frazer  v.  St.  Luke's  Church,  610 

Frazer       v.     United       Presbyterian 
Church,  689,  700 

Frazer,  In  re,  493 

Frazier  v.  Boggs,  28,  142 

Frazier  v.  Church,  25 

Erear  v.  Williams,  276 

Freeborn  v.  W^agner,  577 

Frederick's  Appeal,  53 

Freeman  v.   Coft,  269 

Freeman  v.  Easly,   385 

Freeman  y.   Knight,   554,  559 

Freemantle  v.  Banks,  783 
Freme's   Estate,    267,   798,   800 
French  v.  Frazier,  341 
French  v.  French,  63 
Freud's  Estate,   342 
Frew  V.  Clarke,  53,  55,  57,  188 


to  sections.) 

Frick  V.  Frick,  141,  142,  482,  819, 

820 
irierson  v.  Beali,  157 
Frierson  v.  Van  Buren,  540 
Erink  v.  Pond,  193 
Fristoe  v.  Latham,  684 
Frith,  Goods  of,  219 
Fritz  V.  Turner,  174,  180,  405 
Froelich    v.   Froelich    Trading  Co., 

764 
Frost  V.  Curtis,  542,  543 
Frost  V.  Dingier,  127 
Frost  V.  Tarr,  78 
Frost  V.  Wheeler,  384 
Frost,  In  re,  627,  632 
Fry  V.  Morrison,  314,  723 
Fry  V.  Shipley,  477 
Fry's  Estate,  800 

Fry's  Will,  223 

Frye  v.  Jones,  133,  429 

Fuchs  V.  Fuchs,  75 

Fuentes  v.  Gaines,  230,  337 

Eulbright    v.   Perry    Co.,    110,   111, 
382 

Fulkerson  v.  Chitty,  496 

Fuller  V.  Fuller.  561,  562,  598,  614 

Fuller  V.  Martin,  530 

Fuller  V.  Wilbur,  571 

Fuller's  Estate,  279 

Fuller,  Goods  of,  185 

EuUer's  Will,  643,  655 

Fulton  V.  Andrew.  406 

Funk  V.  Davis,  816 

Fuqua's  Succession,  230 

Eurenes  v.  Eide,  361 

Furenes  v.  Micelson,  151 

Eurenes  v.  Severtson,  512,  514,  561 

Furnish  v.  Rogers,  579 

Furness  v.  Fox,  669 

Fuss  V.  Fuss,  40 


G 


Gable  v.  Daub,  142 

Gable  V.  Rauch,   96,   130,   227,   330, 

372,  375,  455 
Gadd  V.  Stoner,  576,  696 


1018 


TABLE  OF  CASES. 


(References 

Gadtres  v.  Desportes,  572 
Gaffield  v.  Plumber,  461,  695 
Gafney  v.  Kenison,  647 
Gage  V.  Gage,  53,  157,  450 
Gage  V.  Wood,  491,  507 
Gaines  v.  Chew,  340 
Gaines  v.  Fuentes,  315,  340 
Gaines  v.  Gaines,  255 
Gaines  v.  Hennen,  156 
Gaines's   Succession,   31,   446 
Gale  V.  Bennett,  524 
Gall's  Will,  281 
Gallagher  v.  Crooks,  467 
Gallagher  v.  Kinkeary,  213 
Gallagher  v.  Rowan,  507,  707 
Gallagher's  Appeal,  737 
Gait  V.  Provan,  102 
Gambel  v.  Trippe,  619,  692 
Gamble  v.  Butchee,  191,  198,  362 
Gammell  v.  Ernst,  550,  551 

Gammon  v.   The  Gammon  Theolog- 
ical Seminary,  689 

Gantert,  In  re,  689 

Garcelon's  Estate,  326,  346 

Garcia  y  Perea  v.  Barlea,  190,  494 

Gardiner  v.  Gardiner,  125,  254,  276, 
298,  299 

Gardiner  v.  Slater,  669 

Gardner  v.  Gardner,  442,  70,  81,  257, 
449 

Gardner  v.  Lambach,  94 

Gardner  v.  Printup,  768 

Gardner's  Estate,  331,  342,  343,  348, 
445 

Gardner,  In  re,  684,  739 

Garland  v.  Crow,    194 

Garland  v.  Garland,  685 

Garland  v.  Smiley,  669 

Garland  v.  Smith,     323,     331,    423, 
424,  426 

Garlock  v.  Vandevort,  812 

Garn  v.  Garn,  731 

Garner  v.  Langsford,  237 

Garrard  v.  Yeager,  70,  73 

Garraud's  Estate,  820 

(Jarrett  v.  Dabney,  281,  284 

Garrett  v.  Heflin,  219,  414,  417,  428 

Garnett's  Estate,  166 


are  to  sections.) 

Garison  v.  Hill,  321,  521,  742 

Garrison  v.  Little,  653 

Garrity's  Estate,  598 

Garth  v.  Garth,  457,  461,  499,  501, 
788 

Garth  v.  Meyrick,  799 

Gary  v.  James,  73,  79 

Gascarth  v.  Lowther,  143 

Gaskins  v.  Finks,  691 

Gaskins  v.  Hunton,  562,  563,  574 

Gass  V.  Gass,  107,  161,  307,  311 

Gaston  v.  Brokaw,  604 

Gaston's  Estate,  48,  58,  59 

Gates  V.  Pond,  604 

Gaullagher  v.  Gaullagher,  72 

Gawley's  Estate,  66 

Gay  V.  Dibble,  676 

Gay  V.  Gay,  249,  252,  283 

Gay  V.  Gillilan,  385,  405,  407 

Gay  V.  Sanders,  33,  190,  340,  341 

Geale,  Goods  of,  117 

Geek,   In   re,    647 

Gee  V.  Manchester,  676 

Gee,  In  re,  314 

Geere  v.  Stone,  87 

Geery  v.  Skelding,  467,  55o 

Geiger  v.  Geiger,  727,  747 

Gelbach  v.  Shively,  768 

Gilbert  v.  Taylor,  804 

Gelbke  v.  Gelbke,  267 

General  Convention  v.  Crocker,  111, 

389 
George  v.  Braddock,  633 
George  v.  Green,  142 
George  v.  Greer,  239 
Georgia,  etc.  Co.  v.  Archer,  501,  562, 

564 
Gerhard's  Estate,  597 
Gerrish  v.  Gerrish,  162 
Gerrish  v.  Hinman,  553 
Gerrish  v.  Nason,  47,  414 
Gibbon  v.  Gibbon,  142,  499 
Gibbons  v.  Mahon,  602 
Gibson  v.  Dooley,  24 
Gibson  v.  Gibson,  392 
Gibson  v.  McNeely,  526 
Gibson  v.  Nelson,  222 
Gibson  v.  Taylor,  504 


TABLE  OF  CASES. 


1019 


(References  are 

Giddings  v.  Giddings,  268,  2G9,  277, 

279,  746 
Giddings  v.  Seward,  770 
Giddings  v.  Turgeon,  21,  198 
Giflin  V.  Brooke,  254 
Gifford  V.  Choate,  574 
Gifford  V.  Dyer,  277,  287 
Gilbert  v.  Gilbert,  125,  278 
Gilbert  v.  Knox,  205,  218,  228,  225 
Gilbert  v.  Taylor,  754 
Gilbert's  Estate,  In  re,  314 
Gilbreath  v.  Winter,  767,  768,  780 
Gilreath  v.  Gilreath,  409 
Gilchrist  v.  Educational  Trust,  619 
Giles  V.  Giles,  255 
Giles  V,  Little,  576,  681 
Giles  V.  Warren,  161,  259 
Gilkey  v.-  Paine,  602 
Gill's  Will,  192 
Gillen  v.  Kimball,  496 
Gillam  v.  Taylor,  647 
Gillham  v.  Muston,  52,  53 
Gillis  V.  Gillis,  219,  372,  374 
Gillis  V.  Weller,  240 
Gil  man  v.  Morrill,  590 
Gilman's  Will,  185 
Gilmer  v.  Daix,  562,  578 
Gilmer  v.  Stone,  819 
Gilmer's  Estate,  307,  308 
Gilmore  v.  Stone,  819 
Gilmore's  Estate,  504,  561,  741 
Gilpin  V.  Williams,  466,  468,  565 
Ginder  v.  Farnum,  161 
Gindrat  v.  Western  Ry.,  663,  665 
Gingrich  v.  Ginrich,   658,   659,   662 

674,  678 
Girard  v.  Philadelphia,  142 
Gist  V.  Robinet,  482 
Given  v.  Hilton,  466 
Glancy  v.  Glancy,  182,  186,  338 
Glass  V.  Dunn,  765,  770 
Glass's  Estate,  249 
Glasscock  v.  Smither,  264 
Glenn  v.  Belt,  742 
Gloucester's  Will,  70 
Glover  v.  Condell,  473.  578,  580,  590, 

592,  631,  700,  789 
Glover  v.  Hayden,   427 


to  sections.) 

Glover  v.  Patten,  796 

Glover  v.  Keid,  576 

Glover  v.  Stillson,  575 

Glover,  In  re,  172 

Goad  v.  Montgomery,  692 

Goble  V.  Grant,  109 

Godbold  V.  Vance,  268 

Godden  v.  Crowhurst,  685 

Godfrey,   Goods  of,   249,   251 

Godshalk  v.  Akey,  595,  596,  670 

Godwin  v.  Watford,  598 

Goebel  v.  Thieme,  693 

Goebel  v.  Wolf,  467,  548,  669,  739 

Goff  V.  Davenport,  52 

Gold's  Estate,  596,  695 

Golder  v.   Chandler.    136,   141,   750, 

767,   774,   775,   820 
Golding  V.  Golding,  52 
Goldthorpe  v.  Goldthorpc,  333 
Goldthorpe's   Estate,   362,   390,   400, 

401,  423 
Goldtree  v.  Thompson,  637,  670,  812 
Golliver  v.  Mickett,  628 
Gonzales  v.  Barton,  566 
Good  v.  Fichthorn,  575,  611,  684 
Good  V.  Good,  518 
Goodale  v.  Mooney,  619 
Goodbar  v.   Lidikey,   129,  400,   416, 

417,  423 
Goode  V.  Goode,  819 
Goodell  V.  Pike,  321 
Goodfellow  V.  Burehett,  7S5 
Goodier  v.  Edmunds,  7C2 
Goodman  v.  Winter,  28 
Goodrich  v.  Lambert,  463 
Goodrich  v.  Pearee,  561 
Goodright  v.  Glazier,  271 
Goodright  v.  Forester,  144 
Goodright  v.  Harwood,  270 
Goodright  v.  Haskins,  468 
Goodright  v.  Searle.  549 
Goodrum  v.  Goodrum.  727 
Goodsell's  Appeal,  281,  283,  284 
Goodtitle  v.   Welford,   192 
Goodtitle  v.  Otway,  278 
Goodwin  v.  Coddington,  209,   470 
Goodwin  v.  McDonald,  562 


1020 


TA.BLE  OF  CASES. 


(References  are  to  sections.) 


Goon  Gar  v.  Richardson,  150 
Gordon  v.  Burris,  72,  128,  131,  329, 

333,  335,  370,  405,  423,  424,  428, 

819 
Gordon  v.  Gordon,  693 
Gordon  v.  Jackson,  739,  741 
Gordon  v.  Old,  316,  321 
Gordon  v.  Small,  515 
Gordon  v.  Whitlock,    66,  264,    268, 

269 
Gordon's  Will,  315,  376,  377 
Gore  V.  Clark,  24,  620 
Gore  V.  Howard,  326,  346 
Gorgas's  Estate,  744 
Gorham  v.  Dodge,  326 
Gorkow's  Estate,  97,  112,  116,  292, 

344,  345 
Gormley's  Estate,  664 
Gosling,  Goods  of,  265 
Gough  V.  Clifton  Land  Co.,  656 
Gould  V.  Safford,  233 
Gourley  v.  Thompson,  466 
Gould  V.  Winthrop,  765 
Gourley  v.  Campbell,  707 
Gourley  v.  Woodberry,  661 
Grabill  v.  Bear,  176 
Grace  v.  Association,  249 
Grady  v.  Hughes,  323 
Graham  v.  Botner,  576 
Graham  v.  Burch,  247,  255,  279 
Graham  v.  De  Yampert,   516,   769 
Graham  v.  Graham,  73,  78,  212,  213 
Graham  v.  Grugan,  480 
Graham  v.  Knowles,  480 
Graham  v.  O'Fallon,  388,  434 
Grand  Fountain  U.  0.  T.  R.,  etc.,  v. 

Wilson,  44,  56 
Grand  Prairie  Seminaiy  v.  Morgan, 

618,  643,  645,  653 
Grange  v.  Ward,  340 
Granger  v.  Granger,  565,  568 
Grant  v.  Thompson,  390 
Grantley  v.  Garthwaite,  249 
Grass   v.    Sheeler,    597 
Graves  v.  Mitchell,  717 
Graves  v.  Spurr,  551 
Gray  v.  Bailey,  783 
Gray  v.  Case   School,   803,   804 


Gray  v.  Gray,   320 

Gray  v.  Kauffman,  150 

Gray  v.  McReynolds,  346 

Gray  v.  Sherman,  269,  462 

Gray  v.  West,  751 

Gray's    Estate,    25,    507,    508,    509, 

535,  744 
Graybeal   v.    Gardiner,    333,    382 
Graydon  v.  Graydon,  681 
Grayson  v.  Atkinson,  216,  219 
Greaves  v.  Price,  269 
Green  v.  Green,  210,  329,  330,  394, 

507,   669 
Green's  Appeal,  417 
Green's  Estate,  574 
Green's  Will,  429 
Green  v.  Alden,  30,  692 
Green  v.  Blackwell,  645     • 
Green  v.  Broyles,  70 
Green  v.  Grain,    216 
Green  v.  Elvins,  638 
Green  v.  Hewitt,  576,  661 
Green  v.  Hogan,  651 
Green  v.   Orgain,   76,  78 
Green  v.  Shipworth,  236 
Green  v.  Tribe,  269 
Greene  v.  Greene,  96,  102,  397,  610 
Greene  v.  Kirkwood,  681 
Greene  v.  Smith,  602,  696 
Greenheld  v.  Morrison,  150 
Greenhill  v.  Greenhill,   143 
Greenland  v.  Waddell,  636 
Greenough  v.  Cass,  473 
Greenough  v.  Greenough,    21,    173, 

176 
Greenough  v.  Small,  702 
Greenwood  v.  Cline,    414,   420 
Greenwood  v.  Greenwood,  689 
Greenwood,  Goods  of,   164,  254 
Greer  v.  Greer,  97 
Greer  v.  McCrackin,    244 
Greffet  v.  Willman,  576 
Gregor  v.  Kemp,  79 
Gregory  v.  Gates,    21,    85,    89,    93. 

257,  341 
Gregory  v.  Smith,  528 
Gresley  v.  Movisley,   148 
Greves,  Goods  of,  166 


TABLE  OF  CASES. 


1021 


(References  are   to   sections.) 


Greville  v.  Bro\vne,  757 

Grey  v.  Pearson,  459 

Grey's  Trusts,  522 

Griffen  v.  Ulen,  520,  544 

Griffin  v.  Griffin,    603.   691,    696 

Griffin  v.  Pringle,  470 

Griffith  V.  Dieftenderfer,     126,    414, 

423 
Griffith  V.  Frazier,  341 
Griffith  V.  Marsh,  53 
Griggs    V.    Veghte,    465,    601,    711, 

806 
Grimball  v.  Patton,  269 
Grindem  v.  Grindem,  723 
Grimes  v.  Shirk,  564 
Grimm   v.    Tittman,    192,    194,    195, 

196,  203,  205,  216,  227 
Grimmer  v.  Friederieh,  546,  658 
Grimke  v.  Grimke,  89 
Groesbeck  v.   Groesbeek,  806 
Gross   V.   Shuler,   700,   708 
Gross  V.  Strominger,  596 
Grossman's   Estate,   236,  237 
Grosvenor  v.  Fogg,  288 
Grove  v.  Spiker,   127,  416 
Grove's  Estate,  462 
Grove's  Trusts,  608 
Grover's  Succession,  344 
Groves  v.  Cox,  593 
Groves  v.  Gulp,  484,  487,  819 
Groves  v.  Musther,  532 
Grubb  V.  Darlington,  161 
Grubbs  v.  McDonald,  301,  382,  383 
Grubbs  v.  Marshall,  216 
Gryle  v.  Gryle,  173 
Guaranty  Trust  Co.  v.  Maxwell,  28, 

34,  702 
Guernsey  v.  Guernsey,  522 
Guery   v.   Vernon,   461 
Guild  V.  Hull,  130 
Guilfoil   V.   Arthur,   647 
Guilfoyle's  Will,  172,  173,  205 
Guitar  v.  Gordon,   292 
Gullan.  Goods  of,  252 
GuUett  V.  Farley,  722 
Gunn's  Appeal,  427 
Gupton  V.  Gupton.  75 
Gurley  v.   Park,   116,   126,   364,  427 


Guthrie  v.  Guthrie,  52 

Guthrie  v.  Owen,  236,  264 

Guthrie  v.  Price,  173 

Guthrie's  Appeal,  522,  564 

Gwillim  V.  Gwillim,  372 

Gwin  V.   Gwin,   108,    126,    128,   335, 

374,  393,  410,  423 
Gwin  V.  Wright,  234,  235,  237 
Gyde,  In  re,  632,  640 


H 


Haack  v.  Weiken,   710 

Haas  V.  Atkinson,  541 

Habergham  v.  Ridehalgh,  532 

Habergham  v.   Vincent,   44,   166 

Haby  v.  Fuos,  715,  721 

Hackett  v.  Hackett,  269 

Hackett  v.  Milnor.  693 

Hackney  v.  Tracy,  631 

Hadden  v.  Dandy,  643 

Hadley    v.    Hadley,    457,    461,    462, 

586,  616,  619,  689,  692 
Hagan  v.   Piatt,   602 
Haggerty  v.  Hockenberry,  661 
Hahn  v.  Kelly,  341 
Hainer   v.    Iowa    Legion   ot    Honor, 

136,   710,   714 
Haines  v.  Haines,  79 
Haines  v.  Hayden,     104,     105,     108. 

118,   120,    128,   130,   394,   428 
Hair  v.  Goldsmith,  710 
Hairston  v.  Hairston,  450 
Halbert  v.  De  Boae,  340 
Halcomb   v.   Wright,   582 
Hale  V.  Audesley.   142,  489,  506 
Hale  V.  Hale.   74,   280.   284.   691 
Hale  V.  Hobson.  656.  657,  666 
Hale  V.  Marsh,   695 
Hale  V.  St.  Paul,  759.  765 
Haley  v.   Gatewood,    139.    i42,   489, 

504 
Halford  v.  Halford.  64 
Halfield   v.    Thorp.    197 
Hall  V.  Allen.   349 
Hall  V.  Bliss,  692 
Hall  V.  Bragg,  52 


]022 


TABLE  OF  CASES. 


(References  are  to  sections.) 


Hall  V.  Bray,  279 

Hall  V.  Burkham,  52 

Hall  V.  Chaflee,  461 

Hall  v.  Hall,     105,     106,    116,    133, 

141,  146,   181,  203,  209,  319,  325, 

337,   478,   526,   659 
Hall  V.  Palmer,   577,   684 
Hall  V.  Perry,  97,  98,  382,  386,  389, 

392 
Hall  V.  Smith,    545,    710,    713,    728, 

738,   739,   773,   802 
Hall  V.  Wiggin,  529,  666,  668 
Hall  V.  Waterhouse,    92 
Hallet,  In  re,  522 
Halliday  v.  Strickler,  577.  684.  691 
Hallowell   v.   Hallowell,    183,   223 
Hallum  V.  Silliman,  691 
Hallyburton  v.  Carson,  269 
Halsey  v.  Convention      of      P.      E. 

Church,    59,    611,    643,    644,    742, 

743 
Halsey  v.  Goddard,  630,  659 
Halsey  v.  Paterson,    533 
Ham  V.  Goodrich,  )4.  78 
Hambleton  v.   Yocum,   321 
Hamilton-Brown  Shoe  Co.  v.  Whit- 
taker,  321 
Hamilton  v.  Flinn,  21,  23,   142 
Hamilton  v.  Hamilton,  115,  402 
Hamilton  v.  Mills,  515 
Hamilton  v.  Ritcher,    662 
Hamilton  v.  Ritchie,   471 
Hamilton  v.  Rodgers,  618,  656,  658 
Hamilton  v.  Smith,  764 
Hamilton's  Estate,   277,   319,   324 
Hamilton,  In  re,  59,  611,  653 
Hamlin  v.   Fletcher,  210 
Hamlin  v.  Mansfield,  614,  629,  632, 

746 
Hamlin  v.  U.   S.   Express   Co.,   581, 

597 
Hammel   v.   Palmer,   484,   488 
Hammer's  Estate,  770 
Hammet  v.  Hammet,  771 
Hammond  v.  Conkright,   691 
Hammond  v.  Dike,   400 
Hammond  v.  Hammond,   602,   771 
Hampton  v.  Westcott,  97,  127 


Hancock  v.   Lyon,   496 

Hancock  v.  Titus,  659 

Hand   v.   Marcy,   708 

Handley  v.  Palmer,  31,  48,  645 

Handley  v.  Wrightson,  529 

Handy's  Estate,  659,  664,  685 

Hanes   v.   Munger,   678 

Hannah  v.  Peake,  229 

Hannigan  v.  Ingraham,  136 

Hannon  v.  Honnihan,   150 

Hansbrough  v.  Hooe,  782 

Hanson  v.  Little  Sisters  of  the  Poor, 

36,  643 
Hapwood  V.  Hapwood,  783 
Harbin  v.  Masterman,  642 
Harbison  v.  James,  576 
Ilarbster's  Estate,  599 
Hard  v.  Ashley,  269,  462,  798,  800 
Hardenbergh   v.   Ray,    142,   489 
Harder  v.  Harder,  74 
Hardin  v.  Artebnrg,  550 
Hardin  v.  Jamison,  356 
Hardin  v.  Taylor,  361 
Harding  v.  St.  Lotiis  Life  Insurance 

Co.,   624 
Hardy  v.  Gage,  547 
Hardy   v.   Merrill.    382,    388.,    390 
Hardy  v.  Sanborn.  696 
Hardy's  Estate,  614 
Hargadine  v.  Pulte,  292 
Hargreaves,  In  re,  628 
Hargroves  v.  Redd,  21 
Harkness  v.  Corming,  566,  569,  633 
Harkness  v.   Harkey,  507 
Harland  v.  Trigg,  528 
Harley  v.   :Moon.   767,   774 
Harley  v.   State,   150 
Harlow,  In  re,  319 
Harmon,  In  re,   698 
Harney  v.  Donohtie.  150 
Harp  V.  Parr,  85,  96,  127,  129.  161, 

191,  196,  205,  333,  341,  364,  366, 

367,  379,  381,  387,  394,  397,  400, 

417,    423 
Harp  V.  Wallin,  691,  696 
Harper  v.  Baird,  563 
Harraden  v.  Larrabee,  515,  522 
Harris  v.  Alderson.  659 


TABLE  OF  CASES. 


1023 


(References  are  to  sections.) 

Harris  v.  Berry,  551 
Harris  v.  Dodge,  765,  766 
Harris  v.  Dyer,    488,    562,    676 
Harris  v.  Harris,  348,  352,  434,  438, 

440,  441,  442,  443,  468,  688,  745 
Harris  v.  Knight,    437 
Harris  v.  McLaren,  466 
Harris  v.  iNewton,   521 
Harris  v.  Pue,    159 
Harris  v.    Vanderveer,   382 
Harris  v.  Wright,   678,   684 
Harris,   Goods   of,    183,   248,   249 
Harris,  In  re,  249,  252,  314 
Harries,  In  re,  114: 
Harring  v.  Allen,  437 
Harrington   v.    Stees,   234,    237 
Harrison    v.    Bishop,    96,    115,    384, 

402 
Harrison  v.  Brophy,  650 
Harrison  v.  Elvin,   219 
Harrison  v.  Foote,  570,  684 
Harrison  v.  Harrison,   219 
Harrison  v.  Moore,  88,  659,  669 
Harrison  v.  Nixon,  31 
Harrison  v.  Rowan,  47,  312 
Harrison  v.  Rowley,  638 
Harrison  v.Stanton,    344 
Harrison  v.  Weatherby,  28,  466 
Harrison's  Appeal,   131 
Harrison,  In  re,   156,  525 
Harrison's  Will,  382,  400,  409 
Harshaw  v.   Harshavv,   781 
Harshbarger  v.  Carroll,  52 
Hart  V.  Allen,  623 
Hart  V.  Goldsmith,  528 
Hart  V.  Hart,  70,  283,  290 
Hart  V.  Leete,   624 
Hart  V.  Stoyer,  503,  562 
Hart  V.  Thompson.  243 
Hart  V.  West,    801 
Hart  V.  White,  471,  561 
Hartman  v.  Strickler,  408,  409 
Hartson  v.  Elder,  22,  651 
Hartwell  v.   Lively.   273 
Hartwell  v.  McMaster,    173    - 
Hartwell  v.  Tefft,    526 
Hartwig  v.    Sohiefer.    136,   715,   819 
Harvard  v.  Davis,  271,  304 


Harvard  College  v.  Balch,   145,   698 
Harvard   College   v.    Weld,   091 
Harvey  v.  Chouteau,  307,  311 
Harvey  v.  Miller,  802 
Harvey  v.  Sullens,  102 
Harvey  v.  Van  Cott,  136 
Harvey's   Estate,    331 
Harvey,  In  re,  551 
Hascall  v.  King,  630 
Haslewood  v.  Green,  774 
Hassam  v.  Hazen,  698 
Hassel  v.  Hassel,  755,  757 
Hastings  v.  Clifford,  776 
Hastings  v.  Rider,  388,  390 
Hatch  v.  Bassett,   491 
Hatch  v.  Fergiison,    468,    487,    814, 

820 
Hatch  V.  Hatch,  630 
Hatch's  Estate,   712 
Hatchett  v.  Hatchett,   691 
Hatchett   v.    Henderson    Trust    Co., 

676 
Hathaway,  In  re,  329 
Hathaway's  Will,  320 
Hathorn  v.  King,   116 
Hattersley  v.  Bissett,  717 
Hatton,    Goods    of,    190 
Hauenstein  v.  Lynham,  150 
Haus  v.  Palmer,  238 
Havard  v.  Davis,  306 
Haven  v.  Hilliard,  191,  194 
Hawes  v.  Foote,  806 
Hawes  v.  Humphrey,   101,   194,  278 
Hawes  v.  Nicholas,  44,  273 
Hawes  v.  Warner,  765 
Hawke  v.  Chicago  &  W.  I.  Ry.  Co., 

291,  292,  293,  817 
Hawke  v.  Enyart,  307,  308,  679,  681 
Hawkins  v.  Garland,  819 
Hawkins  v.  Grimes.   382 
Hawkins  v.  Hawkins,   198 
Hawkins  v.  Kemp,  91 
Hawkins  v.  Young,  487 
Hawley  v.  Brown,  199 
Hawthorn  v.  Beokwith,  812 
Hawze  v.  Mallet.  308 
Haydoek   v.    Haydock.    133 
Hayday  v.  Hayday,  806 


1024 


TABLE  OF  CASES. 


(References  are 

Hayden  v.  Barrett,  156,  520 
Hayden     v.     Connecticut     Hospital 

for    Insane,    648 
Hayes  v.   Burkram,   424 
Hayes  v.  Hayes,  277 
Hayes  v.  Freshwater,  788 
Hayes  v.  Pratt,  o40,  648 
Hayes  v.  Seavey,  23 
Hayes  v.  Tabor,  658 
Hayes  v.  West,  450 
Haymond  v.  Jones,  574 
Hayne  v.  Irvine,  517 
Haynes    v.    Haynes,    174,    178,    204, 

312,  323,  329,  354 
Haynes  v.  Sherman,  636 
Haynie  v.  Dickens,  713 
Hays  V.  Davis,  573 
Hays  V.  Ernest,  188,  190,  362 
Hays  V.  Harden,  186 
Hays  V.  Leonard,   624 
Hayward  v.  Brailsford,  461 
Hayward  v.  Loper.  464,   794,  820 
Haszard  v.  Haszard,  550 
Hazard  v.  Hazard,   735 
Hazelett  v.  Farthing,  138 
Hazelton  v.  Reed,  50 
Head,  In  re,  764 
Heady's  Will,  221 
Heald  v.  Heald,  473,  806 
Healey  v.    Eastlake,    572 
Healey  v.  Simpson,  70,  72,  73,  79 
Healy  v.  Healy,  462,  514,  556,  565, 

631,  662,  676 
Healy  v.  Reed,  25,  31,  806,  808 
Heard  v.  Reed,  546,  602,  691 
Hearle  v.  Greenbank,  92 
Hearns  v.  Waterbiiry  Hospital,  648 
Heater  v.   Van   Auken,    156 
Heath  v.  Heath,  72,  75 
Heath  v.  Lewis.  681 
Heath  v.  McLaughlin,  771,  773 
ITeath,  Goods  of,   311 
Heaton  v.  Dennis,    330 
Hebden's  Estate,  236 
Heck  v.  Clippenger,  528 
Heck's  Estate,  574 
Hedger  v.  Judy,  767 
Heffner  v.  Heffner,  230 


to  sections.) 

Heffner's  Succession,  345 
Hegarty's  Appeal,  340,  341 
Hegeman  v.  Moore,   54 
Hegney  v.  Head,  132,  382,  394,  406, 

419 
Heidenheimer  v.   Bauman,   617,  821 
Heilman  v.  Heilman,  469,  069 
Heinrichsen  v.  Heinrichsen,  659 
Heise  v.   Heise,   186.  263,  277 
Heiskell   v.    Chickasaw  Lodge,    153, 

647 
Heisler  v.  Sharp,  796 
Heiss  v.  Murphy,  655 
Heister  v.  Green,  760 
Helfrich  v.  Helfrich,  700 
Helfrich  v.  Warner,  760 
Heller  v.  Heller,    588 
Hellier  v.  Hellier,  270 
Hellier,  Ex  parte,  271 
Helm  v.  Leggett,  681,  716 
Helme  v.  Strater,  711 
Helyar  v.  Helyar,  271 
Hemenway  v.  Hemenway.  546,  606 
Hemingway's    Estate,    104,    108 
Hemingway,  In  re,  676 
Heminway  v.  Reynolds,  319 
Heminway  v.  Roberts,  337. 
Hemhauser  v.  Decker,  576 
Hemphill   v.   Pry,   691 
Hemphill's   Estate,   619 
Hendershot  v.  Shields,  470,  473 
Henderson  v.  Harness,    684 
Henderson  v.  Kenner,   199 
Henderson  v.  Kinard,  598 
Henderson  v.  Ryan,    21,    23,    141 
Henderson  v.  Smith,   698 
Hendy's  Estate.  631 
Hennessey's    Heirs   v.    Woulfe,    112, 

241.  413 
Henry    v.    Griffis,    752,    773,    793 
Henry  v.  Hall,  23,  98.  126,  131,  362, 

382,    385,    414,    415.    426,    427 
Henry,  Ex  parte,  157,  188 
Henry  v.  Pittsburgh  Clay  Mfg.  Co., 

561 
Henry  v.  Thomas.  558 
Henshaw  v.   Foster,   159 
Hensler  v.  Senfret,  576,  579 


TABLE  OF  CASES. 


1026 


(References  are   to  sections.) 


Heppenstall's  Estate,  596,  613 
Herbert    v.    Benier,    94,    174,    177, 

223 
Hershey    v.    Meeker    County    Bank, 

577,  812 
Herster  v.  Herster,  423 
Hertzog  v.  Hertzog,  78 
Herwick  v.  Langford   (also  cited  as 
In   re   Langiord),    128,    410,    421, 
423,  472 
Hess's  Will,  23,  385,  404,  411,  414, 

423,  428 
Hester  v.  Young,  53 
Hesterberg  v.  Clark,  254,  276,  298, 

299,   327,   367,   370 
Hewes  v.  Dehon,  766 
Hewlett  V.  Wood,   392 
Herbert  v.  Long,   127,  244,  385 
Herbert   v.   Wren,   726 
Herd   v.    Catron,    681 
Herman's  Appeal,  512 
Herr  v.  Herr,    712 
Herring  v.  Barrow,  690 
Herring  v.  Ricketts,    319,    336,    337 
Herriott  v.   Prime,  663 
Hersey  v.  Simpson,  659 
Hershy  v.  Clark,  66,  67,  68 
Hewitt's  Estate,  649 
Hewitt's  Will,  164.  186 
Hiatt  V.  Williams,  79 
Hibbs  V.  Insurance  Co.,  137,  717 
Hibler  V.  Hibler,  461,  669,  738,  739, 

750,  758,  770 
Hick  V.  Mors,  278 
Hick's  Estate,  542,  554 
Hickling  v.  Fair,  668 
Hickman's  Estate,  o25 
Hickman,  In  re.  45,  285 
hicks  V.  Smith,  522,  525 
Hiers  v.  Gooding,  712 
Hiestand  v.  Meyer,  585 
Higbie  v.  Morris,  764,  765 
Higffir.botham      v.      Higginbotham, 
128,   131,   133,  366,  414,  422,  424, 
426 
Higgins  V.  Carlton,    97,     173,     180. 

218,  382 
Higgins  V.  Dwen.  466,  485 
Higgins,  In  re,  205,  228 


Higginson   v.   Kerr,   691 
Higginson  v.  Turner,  644 
High's  Estate,  570,  664 
Hight  V.  Wilson,  170 
Hightower  v.  Williams,  339 
Hildreth  v.  Marshall,  47,  119,   123, 

225,  226 
Hilger  v.  Dolle,  574 
Hill  V.  Bean,  689 
Hill  V.  Bahrns,  400 
Hill  V.  Barge,  209,  210 
Hill  V.  Bell,  230 
Hill  V.  Brown,  561 
Hill  V.  Crook,    156,   522,   525 
Hill  V.  Harding,  66,  67,  68,  69,  545 
Hill  V.  Hill,    291,    2;94,     723,    724, 

727,   728 
Hill  V.  McRae,  685 
Hill  V.  Page,  610,  611 
Hill  V.  Toms,  758 
Hill's  Estate,   139 
Hill's   Succession,   244,   252,   266 
Hillen  v.  Iselin,  631,  694 
Hills  V.  Barnard,  460,  526,  535,  553, 

667 
Hills  V.  Putnam,  599 
Hillyer  v.  Schenck,  335 
Hillyer  v.  Vandewater,  626 
Hilpipre  v.  Claude,  290 
Hinckley  v.  Primm,  496 
Hinckley  v.  Thatcher,  819 
Hmckley's  Estate,  643 
Hine,  In  re,  403,  426 
Hine,  Goods  of,  257 
Hine  v.  McConnel,  192 
Hindman  v.  Van  Dyke,  423,  426 
Hindmarch,  Goods  of,  433 
Hindmarsh  v.  Charlton,  215,  299 
Hinkle  v.  Landis,  54 
Hinkle's  Appeal,  576 
Hinkson  v.  Lees,  663,  676 
Hinson  v.  Booth.   138 
Hise  V.  Fincher,  247,  255 
Hiss  V,  Wick,   333 
Hitchcock  V.  Bank,  269 
Hitchcock  V.  Genesee  Probate  Judge, 

717 
Hitchcock   V.    Peaslee,   598 


1026 


TABLE  OF  CASES. 


(References  are 

Hitchcock  V.  Shaw,   191,   194 

Hite  V.  Hite,   601,   602 

Hite  V.  Sims,  105 

Hix  V.  Whittemore,  113,  384 

Hoadley  v.  Wood,  528,  545 

Hoagland  v.  Marsh,  517 

Hoban  v.  Campau,  100 

Hobart  v.  Cook,  3G6 

Hobart  v.  Hobait,  205,  307,  314,  366, 

371,   372,  373 
Hobbs  V.  Knight,  248,  249,  252,  254 
Hobbs  V.   Smith,  685 
Hobbs  V.  Pyson,  485 
Hobokefl    First    Baptist    Church    v. 

Syms,    755 
Hobson  V.  Blackburn,  67 
Hock's  Estate,  55/ 
Hockensmith  v.  Slusher,  288,  292 
Hocking,    In   re,    691 
Hockley  v.  Mawbry,  5BG 
Hodges  V.  Phelps,  553 
Hodges,  Appeal  of,  66 
Hodgkinson,  Goods  of,  268,  272 
Hodgman    v.    Kittredge,    191,    197, 

199 
Hodgman's  Estate,  814 
Hodgman,  In  re,  736,  769,  770,  772 
Hodgson  V.  Halford,  681 
Hodgson,  In  re,  697 
Hodnett's  Estate,  25,  72 
Hodsden  v.  Lloyd,  284 
Hoeflfer  v.  Clogan,  650 
Hoesford,  Goods  of,  185 
Hoeveler  v.  Hume,  574 
Hoff's  Estate,  591 
Hoffecker  v.  Clark,  775 
Hoffner's  Estate,  25,  70,  72,  76  79, 

268,  277 
Hoflfman  v.  Hoffman,  21,  216 
Hofius  V.  Hofius,  476 
Hogan  V.  Curtin,  681 
Hogan  V.   Grosvenor,  206,   216,   227 
Hogan  V.  Kavanaugh,  747 
Hoge  V.  Hoge,  72 
Hoit   V.    Hoit,   252,    281,    282,    283, 

284,  285,  466 
Holbrook  v  Bentley,  488 
Holbrook  v.  Harrington,  554 


to  sections.) 

Holcomb  V.  Holcomb,  388 
Holcomb  V.  Wright,  597,  657 
Holden  v.  Blaney,  269 
Holden  v.  Meadows,  97 
Holden    v.     Strong,    605 
Holden  v.  Welis,  566 
Holder,  In  re,  510,  554,  700 
Holdfast  V.  Downing,  192 
Holford,  In  re,  600 
Holland  v.  Alcock,  643 
Holland  v.  Taylor,   136 
HoUenbeck  v.   Cook,    132,   333,   382, 

385,  426 
HoUenbeck  v.  Van  Valken burgh,  178 
Holley  V.  Larrabee,  269 
Holliday  v.  Ward,  335 
Hollingshead  v.  Sturgis,  264,  277 
Hollingsworth  v.  Hollingsworth,  296 
Hollingsworth's  Appeal,  290,  293 
Hollingsworth's  Will,  423 
Hollis  V.  Hollis,  483 
Holloraan    v.    Copeland,    288,    290, 

293 
Hollister  v.  Butterworth,  676 
Hollister  v.  Howe,  806 
Hollrah  v.  Lasance,  354 
Holman  v.  Hopkins,  28 
Holraan  v.  Perry,   340 
Holman  v.  Riddle,    301,     338,    354, 

431 
Holmberg  v.  Phillips,  102,  334 
Holmes  v.  Coates,    648,    787 
Holmes  v.  Hancock,  513 
Holmes  v.  Holloman,  366 
Holmes  v.  Mitchell,  461 
Holmes  v.  Pickett,  706 
Holt  V.  Holt,  597 
Holt  V.  Lamb,  324,  329,  331.  339 
Holt  V.  Pickett,    518,    5G4,    570 
Holt's  Will,  192,   198,  199,  362,  363 
Hollyday  v.  Hollyday,  597,  798,  800 
Holyland,  Ex  parte,  88 
Hollyburton    v.    Carson,    269 
Home   for   Incurable  v.  Noble,   267, 

268,   269 
Homer  v.  Brown,  269 
Homer's  Estate,  463 
Hone  V.  Van  Schaick,  522 


TABLE  OF  CASES. 


1027 


(References  are  to  sections.) 


Honejn^'ood,  In  re,  314 

Hood  V.  Dawson,  5G1,  566 

Hood  V.  Haden,  780 

Hood's  Estate,  314 

Hooks  V.   Stamper,  341 

Hooker  v.  Montague,  597 

Hoope's   Estate,   97,   102,   103,    115, 

323,  384,  390,  402,  414,  468,  744 
Hooper  v.  McQuary,  231,  264 
Hoover  v.  Gregory,  467 
Hoover  v.  Hoover,   658,  659 
Hope's  Appeal,   35,  441,  629,  700 
Hopkins  v.  Coleson,  604 
Hopkins  v.  Gliint,  611 
Hopkins  v.  Grimes,  462 
Hopkins  v.  Keazer,  550,  572,  666 
Hopkins  v,  Kent,  610,  615,  618 
Hopkins  v.  Lee,  78 
Hopkins  v.  Wheeler,  210,  361 
Hopkin's  Trusts,  602 
Hoppe's  Will,  194,  344 
Hopper  V,  Harrod,  664,  678 
Hopple  V.  Hopple,  74 
Horlock,   In  re,   796 
Horn  V.  Pullman,  102,  422 
Hornbuckle,  In  re,  91 
Home  V.  Feather  stone,  215 
Horneby  v.  Davis,  488 
Homer  v.  Brown,  269 
Horton  v.  Cantwell,  808 
Horton  v.  Earle,  542,  743 
Hortoi!  V.  Jolmson,   220 
Horton  v.  Upham,  813 
Horwitz  V.  Norris,  691 
Hoss  V.  Hoss,  674,  678 
Hoshauer  v.  Hoshauer,  47,  160,  423, 

428 
Hotaling  v.  Marsh,   473 
Hotchkiss  V.  Ladd,   321,   337 
Hotchkiss,  In  re,  532 
Hotz's  Estate,  681 
Houghton  V.  Bell,  554 
Houghton  V.  Kendall,  515 
House    of    Mercy    v.    Davidson,    36, 

153,  745 
Houser  v.  Moore,  48 
Houser  v.  RuflFner,  463,  470 
Hovey  v.  Chase,    100 


Hovey  v.  Dary,  704 

Hovey  v.  Hovey,  710,  723 

Hovey  v.  Nellis,  548,  661 

Hovey  v.  Walbank,  581 

Howard  v.  American  Peace  Society, 

467 
Howard  v.  Carusi,  572,  684,  695 
Howard  v.  Howard,  554 
Howard  v.   Moot,   382 
Howard  v.  Hazard,   208 
Howard's    Will,    210 
Howat  v.  Howat,  97,  334,  382 
Howden's  Case,  Lord,  314 
Howe  V.  Fuller,  470,  576 
Howe  V.  Gregg,  570,  613 
Howe  V.  Hodge,  626,  630 
Howel  V.  Price,  705 
Howell  V.  Craft,  719 
Howell  V.  Horner,  449 
Howell  V.  Howell,  430 
Howell  V.  Mellen,  707 
Howell  V.  Patry,  684 
Howell  V.  Taylor,  100,  405 
Howell-Shepherd,  In  re,  269,  497 
Howerton  v.   Henderson,  473 
Howes  V.  Colburn,  306,  394 
Howland  v.  Clendenin,  597 
Howland  v.  Slade,  532,  545,  551 
Hoxsey  v.  Hoxsey,  684 
Hoxton  V.  Griffith,  554 
Hoy  V.  Master,  611 
Hoyt  V.  Jaques,  691 
Hoyt  V.  Hoyt,  750,  755 
Hoysradt  v.   Tionesta  Gas  Co.,  357 
Hubard  v.  Goodwin,   150 
Hubbard  v.  Hubbard,    23,    97,    312, 

382,  383 
Huber  v.  Donoghue,  718 
Huber  v.  Free,  613,  691 
Huber,  Goods  of,  39 
Hubert's  Estate,  802 
Huckabee  v.  Swoope,  528 
Huckvale,  Goods  of,  183 
Huddleston,  In  re,  698,  820 
Hudgins  v.  Leggett,  670,  807 
Hudson  V.  Hudson,   78 
Hudson  V.  Hughan,     94,     97,     101, 

102,   329,   333 


1028 


TABLE  OF  CASES. 


(References  are  to  sections.) 


Hudnall  v.  Ham,  281,  32.3 

Hudson  V.  Adams,  333 

Hudson,  In  re,  618 

Huey  V.  Thomas,  751 

Huff  V.  Huff,  218 

Huffman  v.  Young,  403,  473,  487 

Huggins  V.  Huggins,  553 

Hughes  V.  Bank,  C89 

Hughes  V.  Boone.  321 

Hughes  V.  Clark,  564 

Hughes  V.  Faulkner,   89 

Hughes   V.    Hughes,   288,    400,    631, 

637,  767 
Hughes  V.  Kirkpatrick,  789 
Hughes  V.  Knowlton,   156 
Hughes  V.  Meredith,  414 
Hughes  V.  Murtha,  127,  410 
Hughes  V.  Nicklas,    595 
Hughes  V.  Rhodes,   689 
Plughes  V.  Smith,  231 
Hughes  V.  Wells,  91 
Huhlein  v.  Huhlein,    713,    717,    726 
Huidekoper  v.  Perry,  691 
Huish,  In  re,  797 
Hulett  V.  Carey,  286 
Hulett's  Estate,  281 
Huling  V.  Fenner,  529 
Hull  V.  Holloway,  576,  614 
Hull    V.    Hull,    24,    487     570,    572, 

777 
Hulse's  Will,  227 
Hulson  V.  Sawyer,  331 
Humason  v.  Andrews,  590 
Hume  V.  Burton,  312 
Hume  V.  Randall,  577 
Hume,  In  re,   145 
Humes  v.  McFarlane,  144 
Humphrey   v.   Richards,   91 
Humphries,  In  re,   525 
Hungerford   v.    Nosworthy,   270 
Hunkypillar  v.   Harrison,  722,  752, 

754 
Hunt  V.  Acre,    324 
Hunt  ex  rel.  v.   Evans,   162,  468 
Hunt  V.  Fowler,  612,  647 
Hunt  V.  Hall,   656 
Hunt  V.  Hawes,   684,   696 
Hunt  V.  Hayes,  750 


Hunt  V.  Hunt,  58,  157,  185,  611 

Hunt  V.  Johnson,    473 

Hunt  V.  Wheeler,    752,   761 

Hunt  V.  White,   236 

Hunt  V.  Williams,   491 

Hunt's  Appeal,   689 

Hunt's  Estate,  522,  523 

Hunt,  Goods  of,  47 

Hunt,   In   re,   223,   226,   228,    372 

Hunt's  Will,  284 

Hunter  v.  Green,  598 

Hunter  v.  Hunter,    712,    723 

Hunter  v.  Stembridge,  751 

Hunter,  In  re,  649 

Hunter's  Succession,  744 

Hunter's  Will,  343 

Hurd  V.  Shelton,  603,  737 

Hurley  v.  O'Brien,    127,   333 

Hurst  V.  Beach,  799 

Hurt  V.  Brooks,  463,  579 

Hurton  v.  Hurton.  425,  429,  449 

Huss,  In  re,  35.  36 

Huston  V.  Cone,  710,  717,  720 

Huston   V.   Craighead,   576 

Huston  V.  Huston,  816 

Huston's  Appeal,  803 

Hutchins  v.  Ford,  389 

Hutchins  v.  Pearce,  676 

Hutchinson  v.  Hutchinson,   110 

Hutchinson,  //(  re,  611 

Hutton  V.  Benkard,  698 

Hyatt  V.  Vanneck,  717        % 

Hyde  v.  Hyde,  88,  273 

Hylton  V.  Hylton,  270 

Hysradt  v.  Kingman,  216 


lasigi  V.  lasigi,  689 

Iddings  V.  Iddings,  820 

Ide  V.  Clark,  612,  717 

Ide  V.  Ide,   578,   684,   695 

Ihrie's  Estate,  471.  558 

limas  V.   Neidt,   462,   574,   676,   758 

Ikard  v.  Thompson,  818 

Ilott  V.  Genge,  205 


TAB1.E  OF  CASES. 


1029 


(References  are  to  sections.) 

Ingall's   Will,    366,    393 
Inge  V.  Johnston,  313 
Inge  V.   Jonas,   546 
Ingelfield  v.  Coghlan,  799 
Ingersoll  v.  Hopkins,  281 
Ingersoll's  Esta4;e,  61,  708 
Ingersoll's  Will,  621 
Ingilby  v.  Amcotts,  145 
Inglesant  v.  Inglesant,  205 
Ingraham  v.  Ingraham,  59,  465,  612, 

626,  630,  641,  642,  648,  655,  669, 

813 
Inman,  In  re,  507 
Iowa  Loan  Trust  Co.  v.  Holderbaum, 

764 
Irish  V.  Smith,  428 
IrvJn  V.  Patchen,  702 
Irvin's  Appeal,   513 
Irvine  v.  Irvine,  678 
Irvine  v.  Newlin,   512 
Irwin  v.  West,  424 
Isherwood  v.  Isherwood,  561 
Israel  v.   Wolf,   315 


Ives  V.  Canby,  770,  774 
Ives  V.  McNicoIl,  520 
Izard  V.  Middleton,  74 


Jack  V.  McKee,  78 

Jack,  In  re,  694 

Jackman's  Will,  344 

Jackson  v.  Alsop,     555,    556,    561, 

820 
Jackson  v.  Billinger,  468 
Jackson  v.  Bull,  561 
Jackson  v.  Delancey,  482 
Jackson  v.  Durland,   198 
Jackson  v.  Edwards,  577 
Jackson  v.  Hardin,   96 
•Jackson  v.  Holloway,  306 
Jackson  v.  Hoover,  462 
Jackson  v.  Jackson,    58,    173,     179, 

202,  222,  223,  226,  293,  526,  566, 

605 
Jackson  v.  Moore,   209 


Jackson  v.  Phillips,   639,   641,    643, 
653,  655 
-   Jackson  v.  Roberts,  543 
Jackson  v.  Robins,  576 
Jackson  v.  Shinnick,  267 
Jackson  v.  Thompson,  614,  806 
Jackson    v.    Van    Duzen,    219,    373 
Jackson  v.  Wood,   198 
Jackson's  Estate,  67u 
Jackson's  Succession,  795,  797 
Jacob  V.  Jacob,  617,  710 
Jacob's  Estate,   142,  489 
Jacob's  Will,   172 
Jacobson,  In  re,  186 
Jacoby's  Estate,  48,  277 
Jacques  v.  Horton,  449 
Jacques  v.  Swasey,   308 
Jaffee  v.  Jacobson,  79 
James  v.  Cohen,  272 
James  v.  Dean,  141 
James  v.  Marvin,   273,   277 
James  v.  Pruden,  465,  470 
James  v.  Shrimpton,    259 
James  v.  Sutton,    116,    132,    279 
James,  Goods  of,  249,  251,  252,  254,  • 

259,  275 
James,   In  re,    602 
Jamieson,  In  re,  704,  755 
Janes,  In  re,  321 
Janney  v.  Sprigg,  473,  676 
Jaques  v.   Swasey,   783 
Jarnagin  v.  Conway,  466 
Jasper  v.  Jasper,    461,   463,    817 
Jaudon  v.  Ducker,   755 
Jauretche  v.  Proctor,  578,  684 
Jeans,   In   re,    525 
Jeflfers  v.  Lampson,  662 
Jele  v.  Lemberger,  151,  325 
Jenkins  v.  Adcock,  52 
Jenkins  v.  Compton,  576 
Jenkins  v.  Dawes,   192 
Jenkins  v.  Jenkins,  520 
Jenkins  v.  Tobin,   382 
Jenkins  v.  Trust    Co.,    31,    33,    35, 

600 
..Jenkins's  Will,  173,  174 
Jenks  V.  Jackson,  470 
Jenkyns  v.  Gaisford,  172 


1030 


TABLE  OF  CASES. 


(References  are  to  sections.) 


Jenner  v.  Finch,  209 

Jenness  v.  Hazelton,  47 

Jennings  v.  Jennings,   137,  737 

Jennings  v.  Tarr,   676 

Jepson  V.  Key,    142 

Jeremy's  Estate,  G59 

Jesse  V.  Parker,   221 

Jilson  V.  Gilbert,  74 

Jinkins  v.  Lawrence,  269 

Jocelyn  v.  Nott,  633,  640 

Jochumsen  v.  Bank,  341 

Jodrell,  In  re,  529,  532 

John  V.  Smith,  643,  645 

Johns  V.  Hodges,  312 

Johns  V.  Johns,  577 

John's  Will,  45,  610,  640,  G45,  653 

Johns   Hopkins   University   v.   Mid- 

dleton,  691 
Johns  Hopkins  University  v.  Pinck- 

ney,  207,  269 
John  Mercer  Home,  In  re,  641 
Johnson    v.    Armstrong,    125,    384, 

387 
Johnson  v.   Bard,   325 
Johnson  v.  Beazley,  341 
Johnson  v.  Billups,   612 
Johnson  v.  Bodine,  520,  554 
Johnson  v.  Brailsford,      242,      248, 

254,   263,   450 
Johnson  v.  Brasington,  466,  512 
Johnson  v.  Childs,  691,  765 
Johnson  v.  Cochrane,   116,   323 
Johnson  v.  Conover,    700,   757,   700 
Johnson  v.  Edmond,  630,  631 
Johnson  v.  Fry,    157 
Johnston  v.  Glasscock,  234 
Johnson  v.  Gooch,    685 
Johnson  v.  Goss,  477 
Johnson  v.  Granthen,  691 
Johnson  v.  Home    for    Aged    Men, 

750,  758,  773,  775 
Johnson  v.  Hubbell,  79 
Johnson  v.  Johnson,    52,    92,    206, 

216,  240,  333,  481,  494,  576,  582, 

610,   619,   684 
Johnson  v.  Knight,  554 
Johnson  v.  Poulson,  758 
Johnson  v.  Stevens,  405 


Johnson  v.  Warren,  675 

Johnson  v.  Webber,   545,    558,    561, 

628,   631,   633,   661,   802 
Johnson  v.  Whiton,  561 
Johnson  v.  Yancey,   55 
Johnson's  Appeal,  411 
Johnson's  Estate,  402 
Johnson's  Will,   257,   384,  434,  437, 

449,  450,  453 
Johnston  v.  Johnston,  5G2,   576. 
Johnston  v.  Knight,    557 
Johnston  v.  Safe    Deposit    &    Trust 

Co.,  562 
Johnston'  v.  Stevens,  S!s2 
Johnston's    Estate,    112,    115,    497, 

626,  629,  6.30,  632 
Johnston's  WMll,  273 
Johnstone  v.  Harrowby,  G43,  800 
Joliffe  v.   Fanning,  45 
Jolly's  Will,  181 
.Tones  v.  Bacon,  574 
Jones  v.  Caster,  348,  352,  434,  435, 

441 
Jones  V.  Colbeck,  547 
Jones  V.  Creveling,  799 
Jones  V.  Deming,  576 
Jones  V.  Dove,  312 
Jones  V.  Green,  643 
Jones  V.  Grogan,   97,   121,  423,   4.30 
Jones  V.  Habersham,    28,    36,    153. 

161,   194,   640,  651 
Jones  V.  Hartley,   278,   304,   306 
Jones  V.  Hunt,  459,  551 
Jones  V.  Jones,  182,  .341,  373,  572, 

576,  613,  666,  681,  700 
Jones  V.  Knappen,   668 
Jones  V.  Larrabee,   191,  199 
Jones  V.  Lloyd,  513,  514,  710 
Jones  V.  Martin,  70,  79 
Jones  V.  Miller,  520 
Jones  V.  Moore,  676 
.Jones  V.  Murphy,  268,  270,   273 
Jones  V.  Norton,   234 
.Tones  v.  Perkins,  83 
Jones  V.  Port    Huron    Engine,    etc. 

Co.,  684 
.Tones  v.  Quattlebaum,  485,  820 
Jones  V.  Richardson,  786 


TABLE  OF  CASES. 


1031 


(References  are  to  sections.) 


Jones  V.  Roberts,  127,  257,  331,  333, 

341,   344 
Jones  V.  Robinson,  22,  312 
Jones'  V.  Simpson,     123,     128,    409, 

413 
Jones  V.  Strong,  209 
Jones  V.  Tebbetts,  193,  199 
Jones  V.  Tuck,  213 
Jones  V.  Webb,  676 
Jones's  Estate,  248,  320,  341,  729 
Jones,  Goods  of,  187 
Jones,  In  re,  320,  577 
Jordan  v.  Fortescue,  468 
Jordan  v.  Hinkle,  676 
Jordan  v.  Jordan,  53 
Jordan  v.  Russell,   346 
Jordan  v.  Woodin,  470 
Jordan's  Estate,  199,  362 
Joslin  V.  Hammond,  466 
Joslin  V.  Rhoades,  562 
Joslyn  V.  Sedam,  105 
Jourolmon  v.  Massengill,  685 
Joy  V.  Fesler,  488 
Judevine  v.  Judevine,  507 
Judy  V.  Guilbert,  487 
Jupp,  In  re,  478,  506 
Justus,  Succession  of,  224,  613,  321, 
336 


K 


Kaenders    v.    Montague,    132,    385, 

422,  423,  426 
Kain   v.   Fisher,   528 
Kain  v.  Gibboney,  31 
Kane's   Estate,   596 
Kanouse  v.  Stockbower,  473,  502 
Kastell  V.  Hilman,  79 
Kaufman  v.  Breckinridge,   581 
Kaufman  v.  Burgert,  684 
Kaufman  v.  Caughman,     132,    208, 

222,   366,  372,   383,  388,  409,  423 
Kaufman  v.  Ehrlich,  52 
Kaufman's  Estate,  23,  130,  423,  426, 

427 
Kaufman,  In  re,  284 
Kaufman's  Will,  385 
Kaul  V.  Brown,  428 


Kavanaugli's   Will,  25 

Keagle  v.  Pessell,  70 

Kean  v.  Kean,   622 

Kean  v.  Tilford,   656 

Keaney  v.  Keaney,  583,  585 

Kearney  v.  Cruikshank,  607,  G09 

Keating  v.  McAdoo,  2,  473,  574,  676 

Keating  v.  Reynolds,  596 

Keay  v.  Boulton,  515 

Keebler  v.  Shute,  97 

Keenan  v.  Keenan,  150 

Keen  v.  Keen,  437,  450 

Keene  v.  Corse,  312,  323 

Keene  v.  Munn,  765 

Keeney  v.  Whitmarsh,  173 

Keepers  v.  Fidelity,  Title  &  Deposit 

Co.,  663 
Keesy  v.  Dimon,  435,  442 
Kehoe,  Goods  of,  162 
Keister  v.  Keister,  321,  323,  335 
Keith  V.  Eaton,  29 
Keith  V.  Keith,   28 

Keith  V.  Miller,  66,  68,  70 

Keith  V.  Proctor,    316 

Keith  V.  Scales,  610,  614,  640,  645. 
655,  686,  819,  823 

Keifer  v.  Schwartz,  698 

Keithley  v.  Stafford,  96,  333 

Kelcher.  In  re,  219 

Kelemen's  Will,  611 

Keller  v.  McCalop,  241 

Kellett   V.    Shepard,   512,   517,   545, 
561,   547 

Kellher  v.  Kernan,  58 

Kellogg  V.  Mix,   473 

Kellum,  In  re,   372 

Kelly    V.    Aired,    92,    93 

Kelly  V.  Ball,  713 

Kelly  V.  Gonce,   669 

Kelly  V.  Jackson,   340 

Kelly  V.  Kelly,   333,   387,  550,  806, 
820 

Kelly  V.  Miller,  111 

Kelly  V.  Nichols,  466,  630,  647,  649, 
651.  654,  745.  746 

Kelly  V.  Parker,  52 

Kelly  V.  Richardson.    49,    53.    268, 

■     269,  492,  494,  767,  768,  773,  775 


1032 


TABLE  OF  CASES. 


(References  are  to  sections.) 


Kelley  v.  Shimer,  52 

Kelley  v.  Vigas,  553,  557 

Kelley  v.  Welborne,  25 

Kelley  v.  Williams,  594 

Kelso's  Estate,  569 

Kerapsey   v.   McGinniss,   389,   392 

Kendall  v.  Clapp.  624 

Kendall  v.  Gleason,  515 

Kendall  v.  Kendall,  157 

Kenebel  v.  Scrafton,  283 

Keniston  v.  Mayhew,  581,  690 

Kennard  v.  Kennard,  317,  466 

Kennedy  v.  Badgett,  787 

Kennedy  v.  Johnston,  727 

Kennedy  v.  Kennedy,  576 

Kennedy  v.  Merrick,   806,  808 

Kennedy  v.  Upshaw,  264,  370 

Kennedy's  Estate,  674 

Kennett,  in  re,  276 

Kenney  v.  Keplinger,  581 

Kent  V.  Barker,  290,  522 

Kent  V.  Dunham,  647,  803,  804 

Kent  V.  Kent,  74 

Kent    V.    Mahaflfey,    244,    247,   255, 

278,  279 
Kent  V.  Morrison,  576 
Kent  V.  Tapley,  499 
Kenworthy  v.  Williams,  382 
Kenyon  v.  Saunders,  86,  155,  325 
Kenyon,  Petitioner,  466,  549 
Kerf  V.  Gerichs,  562 
Kern  v.  Kern,  274,  365 
Kerr  v.   Dougherty,   508 
Kerr  v.  Lunsford,   85,   96,   409 
Kerr  v.  Moon,   28 
Kerrigan  v.  Tabb,  739,  741 
Kessinger  v.  Kessinger,   132,  411 
Ketchum  v.  Corse,  630,  633,  745 
Ketchum  v.  Stearns,  130,  170 
Key  V.  Holloway,  112,  382 
Key  V.  Weathersbee,   194,  196,  197, 

198 
'  Keyl  V.  Feuchter,  202,  203,  207,  222' 

227 
Kidd,  In  re,  135 
Kidder's  Estate,  261,  348 
Kidney's  Will,  105,  120,  400 
Kieflfel  v.  Keppler,  575 


Kiene  v.  Ginehle,  565 

Kilburn  v.  Dodd.  808 

Kile,  In  re,  329 

Kilgore  v.  Kilgore,  462,  553 

Kimball    v.    New   Hampshire    Bible 

Soc,    135,   698,   813 
Kimball  v.  Story,  820 
Kimball's   Will,   493,   574,   744 
Kimberly's    Appeal,    97,    104,     105, 

111,   120,  391 
Kimberley,  In  re,  540,  590 
Kimble  v.  White,  658,  668 
Kimpton^  Goods  of,  186 
Kinaid  v.  Kinaid,  53 
King  V.   Beck,   564,  596 
King  V.  Berry,  117 
King  V.  Bock,   695 
King  V.  Evans,    370,    565 
King  V.  Frost,   582 
King  V.  Frick,  676 
King  V.  Grant,  819 
King  V.  Holmes,  413,  414,  423,  424, 

426,  429 
King  V.  King,  97,  362,  382 
King  V.  Ponton,  449 
King  V.  Savage,  566 
King's  Administrator    v.    Rose,  323 
Kingman  v.  Harmon,  656 
Kingman  v.  Winchell,  685,  820 
Kingsbury  v.  Whitaker,   384,   385 
Kinike's   Estate,   619,   643 
Kinkele    v.    Wilson,  470,  472,  562. 

758 
Kinney  v.  Keplinger,  676 
Kinney  v.  Kinney,  820 
Kiracofe  v.  Kiracofe,  93 
Kirby  v.  Kirby,  337 
Kirk   V.    Bowling,    312 
Kirkcudbright     v.      Kirkcudbright, 

271 
Kirke   v.   Kirke,   277 
Kirkpatrick  v.  Jenkins,     266,     400, 

423 
Kirkpatrick  v.  Pyle,   54 
Kirkpatrick,  /n  re,  254 
Kirkpatrick's    Will,    181,    223,   244, 

249,   450 
Kisecker's   Estate,   49,    188 


TABLE  OF  CASES. 


1033 


(References  are  to  sections.) 


Kitchell  V.  Young,  758 

Kitchens  v.  Kitchens,  434 

Kittredge  v.  Hodgnian,  198,  362 

Kleeburg  v.  Schrader,   70,  73,  77 

Kleinman  v.  Geiselman,  138 

Kling  V.  Schnelbecker,  554 

Klotz's   Estate,    700 

Knapp  V.  Knapp,  437,  453 

Knapps  V.   Reilly,   173,  222 

Knaub's   Estate,   753 

Knauss's  Appeal,  98 

Knauss's  Estate,  461,  680 

Knight  V.  Knight,  346,  596 

Knight  V.  Mahoney,  681,  726 

Knight  v.  Pottgeiser,  659 

Knight  V.  Read,  290 

Knight  V.  Tripp,  44,  55,  56,   159 

Knight  V.  Weedon,  28 

Knight's  Estate,  25,  110,  649 

Knollys  v.   Alcock,  278 

Knoppel  V.  Holm,  28 

Knorr  v.  Millard,  548 

Knowlson  v.  Fleming,  52 

Knox  V.  Barker,  31 

Knox  V.  Jones,  28 

Knox   V.    Knox,   23,    125,    126,    131, 

133,  270,  273,  382,  385,  453 
Knox  V.  Paull,   312,  313,  337 
Knox  V.  Richards,   236 
Knox's  Appeal,   172 
Knox's  Estate.   58,   159 
Koeffler  v.  Koeffler,  676 
Koegel  V.  Egner,  94,  384,  416 
Koff  V.  Herrman,  561 
Kohl  V.  Schober,  47 
Konvalinka    v.    Schlegel,    716 
Koon's   Estate,   804 
Kopp  V.  Gunther,  52 
Korf  V.  Gerichs,  560,  561 
Kornegay  v.  Morris,  676 
Kostelecky   v.    Scherhart,   312,   325, 

368,  396 
Kotz  V.  Belz,  436,  439 
Krankel  v.  Krankel,  126 
Krause  v.  Kliicken,  690 
Krell  V.  Codman,  54 
Krigbaum  v.  Southard,  803 
Kruse  v.  Baeder,  685 


Kumpe  V.  Coons,   194,   196,  325 

Kunnen  v.  Zurline,  65,  732 

Kurtz   V.    Saylor,   21,   89,   283,    310 

Kurtz's  Estate,  522 

Kuykendall  v.  Devecmon,  561,  562, 

598,  802 
Kyle  V.  Perdue,  53 


La  Bar's  Estate,  598 

La  Chapelle  v.  Burpee,  155 

Lackey's  Estate,   708 

Lacon,  In  re,  780 

Ladd  V.   Chase,   573,   695,   698,  807, 

808 
Ladd  V.  Harvey,  592 
Ladd's    Estate,    503 
Ladd's  Will,  249 
Lafoy  V.  Campbell,  676 
La  Grange  v.  Ward,  315 
Lagrave   v.   Merle,   230 
Laing's  Will,  228 
Laird  v.  Laird,  78,  80 
Lake  v.  Copeland,  770,  774,  793 
Lamb  v.  Girtman,  210,  215 
Lamb   v.    Lamb,    2,    142,    459,    473, 

479,  489,  507 
Lamb  v.  Lippincott,    161,   379,   390, 

409,  417,  428 
Lamb  v.  Lynch,  394,  684 
Lambell  v.  Lambell,  449 
Lambert  v.  Coopers,  366 
Lambe  v.  Eames,  611 
Lambie's      Estate,     270,     434,     437, 

439,  441,  443,  444,  451,  454 
Lampert  v.  Haydel,  685 
Landers  v.  Dell,  629,  033 
Landwehr's   Estate,  545,   548 
Landry  v.  Tomatis,  241 
Lane  v.  Crutchfield,  681 
Lane  v.   Eaton,   640,   641,   643,   649 
Lane   v.    Hill,    268,    273,    329,    330, 

331,    377,   441 
Lane  v.  Lane,  226 
Lane  v.  Moore,  400,  423,  437 
Lane's  Appeal.  21,  216 


1034 


TABLE  OF  CASES. 


(References  are 

Lang's  Estate,  112,  257 
Lang's  Will,  299 
Langan,  In  re,  177,  335 
Langdale  v.  Briggs,  142 
Langdon  v.  Astor,  102,  165,  308 
Langdon   v.   Blackburn,   315 
Langevin,  In,  re,  325 
Langford  v.  Pitt,  142,   143 
Langford,  In  re,  128,  410,  412,  421, 

423 
Langford's  Estate,  400 
Langhrost  v.  Ahlers,  804 
Langmaid  v.  Hurd,  528 
Langley  v.  Farmington,  598 
Langley  v.  Langley,  21,  230 
Langley  v.  Tilton,  576 
Langslow  v.  Langslow,  4G8 
Lansing  v.  Haynes,  283,  284,  285 
Lant's  Appeal,  281,  284 
Lapham  v.  Martin,   598,  666 
Larby  v.   Crewson,   546 
Lardner  v.  Williams,  691,  698 
Larkin  v.  Larkin,  752 
Larkins  v.  Larkins,  254 
Larsen  v.   Johnson,   695 
Larson  v.  How,  339 
Larson's  Estate,  312,  319 
Lasak's  W^ill,   317 
Lasanee's  Estate,  438,  440 
Lassee's  Will,  220 
Lassiter  v.  gravis,  345 
Latham  v.   Latham,  473 
Latham  v.  Udell,   410 
Lathrop  v.  Dunlap,  284 
Latimer  v.  Latimer,  52 
Latta  V.  Brown,  737 
Lauck  V.  Logan,  44,  49,  52 
Landy,  In  re,  331 
Landy's  Will,   372 
Laugh  ton  v.  Atkins,  257,  264,  273, 

277,   319 
Laurence  v.  McQuarrie,  674,  682 
Lawrence  v.  Smith,  467,  626 
Lawrence's  Estate,  348 
Lautenschlager    v.    Lautenschlager, 

441 
Lautenshlager,  In  re,  44,  53 
Lavery  v.  Egan,  512 


to  sections.) 

Lavin  v.  Emigrant  Industrial  Sav- 
ings Bank,  341 

Law  V.  Douglas,    684 

Law  V.  Law,    249,   252,   254 

La  we  V.  Holder,  812 

Lawes  v.  Bennett,  482 

Lawlor  v.  Holohan,  676 

Lawren's  Estate,  626 

Lawrence  v.  Crane,  513,  5(51 

Lawrence  v.  Hebbard,  522 

Lawrence  v.  Lawrence,  566 

Lawrence  v.  Oglesby,  72,  244,  335 

Lawrence  v.  McArter,  547 

Lawrence   v.    Smith,    628,    629,    632 

Lawrence  v.   Steel,   97 

Lawrence's  Estate,  626,  630 

Lawson  v.  Dawson's  Estate,  181 

Lawson  v.  Morrison,  270,  273 

Lawson,  In  re,  299,  431,  432 

Lawton  v.   Corlies,  512 

Lawton  v.  Fitchburg  Savings  Bank, 
750,  773 

La\vton  v.  Lawton,  692,  702 

Lawyer  v.  Smith,  362,  437 

Laxton  v.  Tilley,  751 

Lay  V.  Creed,  547 

Layman  v.  Conrey,  133 

Layman's  Will,  382,  388 

Leach  v.  McFadden,  70 

Leach  v.  Leach,  603 

Leach,  Goods  of,  254 

Leake  v.  Robinson,  466,  507 

Leake  v.  Watson,  561,  565,  633,  736. 
744 

Learned's  Estate,  21,  329 

Leathers  v.  Gray,  568 

Leathers  v.  Greenacre,  57,  58,  188, 
233 

Leaver  v.  Ganss,  53 

Leavitt  v.  Beirne,  685 

Lebeau  v.  Trudeau,  462 

Le  Breton  v.  Cook,  488 

Ledger  v.   Hooker,   798 

Lednum  v.  Cecil,  594 

Ledwith  v.  Claffey,  389 

Lee  V.  Bennett,  89 

Lee  V.  Carter,  75 

Lee  V.  Lee,  110,  747 


TABLE  OF  CASES. 


1035 


(References  are  to  sections.) 


Lee  V.  Mumford,   GG2 
Lee  V.  Paine,  819  ' 

Lee  V.  Scudder,  108 
Lee  V.  Simpson,    689,   098,   817 
Lee  V.  Smith,  771 
Lee  V.  Tower,  V36 
Lee  V.  Welch,  546,  550,  561 
Lee,  In  re,  501 
Lee's  Will,  97,  384 
Leeming  v.  Sherratt,  661 
Leete  v.  State  Bank,  624 
Le  Farrant  v.  Sijeneer,  492 
Lefebre's  Estate,  279,  400,  401,  752 
Le  Fevre  v.  Le  Fevre,  344 
Leffingwell  v.  Bentley,  822 
Leggett  V.  Firth,   576 
Legwin  v.  McRee,  658 
Lehnard  v.  Specht,  660,  696 
Leigh  V.  Harrison,  685 
Leigh  V.  Savidge,  466 
Lejee's  Estate,  614,  622 
Lemme,  Goods  of,  368 
Lcnehan  v.  Spaulding,  150 
Lenning's  Estate,  72,  631 
Lent  V.  Howard,  689 
Lenz  V.  Prescott,  806 
Leonard  v.  Am.   Baptist  Mis.   Soci- 
ety, 577 
Leonard  v.  Burr,  640 
Leonard  v.  Enochs,    292,    293 
Leonard  v.  Haworth,  628,  651,  710 
T^onai-d  v.  Leonard,  115 
Leonard,  Ex  parte,  175,  177,  199 
Lepard  v.   Skinner,   507 
Lepley  v.  Smith,  577 
Lepps   .V  Lee,   664 
Leslie  v.  McKinney,  52 
Leslie  v.  McMurty,  377 
Leslie  v.  Moser,  803 
Leslie  v.  Sims,  325 
L'Estorneau  v.  Herquenet,  548,  656 
Lett  V.  Randall,  466 
Levengood  v.  Hoople,  571 
Leverington,  Goods  of,  217,  219,  220 
Leverett  v.  Carlisle,  227 
Levis's  Estate,  112 
Levy  V.  Levy,  746 
Levy's  Estate,  496,  684 


Lewis  V.  Aylott,  240,  446,  447 
.Lewis  V.  Bryce,  572 
Lewis  V.  Citizens'    National    Bank, 

669 
Lewis  V.  Doerle,  653 
Lewis  V.  Lewis,  205,  219,  226,  228, 

236,  243,  249,  450 
Lewis  V.  Lichty,  716 
Lewis  V.  Palmer,  575 
Lewis  V.  Pitman,  407,  576 
Lewis  V.  Scofield,   66,   67,   68 
Lewis,  Goods  of,  219,  248 
Lewis'  Estate,  653 
Lewis,  In  re,  501,  585 
Lewis's  Will,  222 
Leyson  v.  Davis,  79 
L'Herminier,  In  re,  691 
Lide  V.  Lide,  410 
Lifford  V.  Sparrow,  676 
Liggatt  V.  Hart,  489 
Like  V.  Cooper,  713 
Likefield  v.  Likefield,  61,  62,  674 
Lillibridge's  Estate,  331 
Lillie  V.  Lillie,  449 
Lilly  V.  Menke,  737 
Lilly  V.  Tobbein,  323 
Lilly  V.  Waggoner,    397 
Linberry  v.  Mason,  264 
Linch  V.  Linch,  324,  423 
Lincoln-  v.  Perry.  29,  34,  512,  561 
Lindemeier  v.  Lindemeier,  570 
Lindley    v.    O'Reilly,    689,    692 
Lindsay  v.  Waldbrook,  771 
Lindsay  v.  Zanoni,  8C2 
Lindsay,  Ex  parte,  63,  64 
Lines  v.  Lines,  57 
Lingart  v.  Ripley,  713 
Linginfetter  v.  Linginfetter,  273 
Linkmeyer  v.  Brandt,   96,   115,  257 
Linton   V.    Laycock,   461,    658,    659, 

662,   663 
Linton's   Appeal,   227,   382 
Lippincott  v.  Davis,  48,  466 
Lippincott  v.  Stottenburg,    669 
Lippincott  V.  Wikoff,   191,   198,   199 
Lippincott's  Estate,   478 
Lischy  v.  Schrader,  333,  341 
Liscomb  v.  Eldredge,  329 


1036 


TABLE  OF  CASES. 


(References  are  to  sections.) 


Lisk  V.  Sherman,  74,  79 

Lisle  V.  Tribbie,  78,  79,  795 

List  V.  Rodney,  564 

Listen  V.  Jenkins,  676 

Littig  V.  Hance,  459,  767 

Little  V.  Geer,  596,  598,  605 

Little  V.  Giles,   576 

Little  V.  Lockman,  231 

Little  V.  Thome,  806 

Little's  Appeal,  668,  669 

Littlewood's  Will,  572,  574 

Livesey  v.  Jones,  654 

Livingston's  Appeal,   329,   370,   382, 

401,  405,   413,  424 
Livingstone's  Will,  98,  120 
Lloyd  V.  Lloyd,  613 
Lloyd  V.  Rambo,  570 
Lloyd's  Estate,  752 
Locke  V.  James,  254 
Lockart  v.  Lockart,  557 
Lockhart  v.  Stephenson,  325 
Lockhart,  /n   re,   314 
Lockett  v.  Lockett,  561 
Lockridge  v.  Mace,  630 
Lockridge  v.  Mariner,  630 
Lockwood  V.  Mildeberger,  698 
Loder  v.  Whelpley,  416 
Lodge's  Will,  97 
Loeb  V.  Struck,  576,  665 
Loeser's  Estate,   102,   331 
Loftus-Otway,  In  re,  685 
Logan  V.  Bell,  284 
Logan  V.  Brunson,   742 
Logan  V.  McGinnis,  78 
Logan  V.  Wienholt,  79 
Logan's  Estate,  414,  429,  506,  535 
Logue  V.   Stanton,   216 
Lomax  v.   Shinn,  574,  576,  819 
Lombard  v.  Willis.  549 
London  v.  R.  R.  Co.,  313 
Lones,   In  re,   274,   454 
Long  v.  Alfred,  304 
'  Long  v.  Blackall,    533,    547,    628 
Long  V.  Foust,   238 
Long  v.  Gloyd,    643 
Long  V.  Hess,  40,  73 
Long  V.  Waldraven,  576 
Long  V.  Zook,  21,  173 


Longer's    Estate,    55 

Longford  v.  Eyre,  209 

Longley  v.  Stump,  755 

Longwith  v.  Riggs,  807 

Loocock  v.  Clarkson,  776 

Lopez's  Succession,  343 

Loring  v.  Arnold,  145 

Jjord  V.  Bourne,  515 

Lord   V.    Lord,    191,    193,    199,    221, 

776 
Lord  V.  Simonson,  488 
Lorillard's   Petition,   489 
Loring  v.  Hayer,   474 
Loring  v.  Hayes,  595 
Loring  v.    Massachusetts     Horticul- 

aural  Society,  804 
Loring  v.  Park,  194 
Loring  v.  Steineman,  319 
Loring  v.  Summer,  166 
Lorings  v.  March,  294 
Lorton  v.  W'oodward,  595 
Losey  v.  Stanley.  661 
Lott  v.  Thompson,  553 
Lougheed     v.     Dykeman's     Baptist 

Church,   640 
Loughney  v.  Loughney,  97,  320,  394 
Louisville  Driving,  etc.  Association 

V.   Louisville  Trust   Co.,   582 
L.  &  X.  R.  R.  V.  Sanders,  346 
Louisville  Trust  Co.  v.  Todd,  570 
Lovass  V.  Olson,  667,  669,  674,  676 
Lovass's  Estate,  676 
Love  v.  Blann,  52 
Love  V.  Johnson,  307,  400 
Lovejoy  v.  ^McDonald,  689 
Lovell   V.   Charlestown.   802 
Lovell    V.    Quitman,    249,    252,    254, 

299 
Loveren  v.  Donaldson,  743 
Loveren   v.   Lamphrey,   21,    141 
Lovering   v.    Lovering,    744 
Lovett  V.  Chisholm,  337 
Loving  V.  Rainey,  507 
Lowe  V.  Barnett,  659 
Lowe  V.  Cloud,    684 
Lowe  V.  Joliffe,   192 
Lowe  V.  Williamson,  102 


TABLE  OF  CASES. 


1037 


(References  are  to  sections.) 


Lowman,  In  re,  482,  580,  630,  677 

Lowndes  v.  Cooch,  37 

Loy  V.  Kennedy,  205 

Lucas  V.  Goff,  234,  236 

Lucas  V.  Parsons,  109,  115 

Lucas   V.   Tucker,  28 

Luchenbach's   Estate,   697 

I;iidlow  V.  Bunbury,  684     * 

Ludlow  V.  Ludlow,  205,  228 

Ludlow's  Estate,  320 

Ludlow's  Will,  320 

Ludwig's  Estate,  205,  212 

Luebbe's    Estate,    25 

Lufl'berry's  Appeal,  707 

Luigart  v.  Ripley,  713 

Luudway  v.   Croft,   103 

Lundy  v.   Lundy,   687 

Luper  V.  Werts,  88,   158,  205.   312, 

372 
Lurie   v.   Radnitzer,   291,   292,   294, 

298,  433 
Lurman   v.   Hubner,   631 
Lushington  v.  Onslow,  431 
Lushington  v.  Sewell,  143 
Lushy  V.  Taylor,  624 
Luther  v.  Kidby,  278 
Luther  v.  Luther,  312,  313,  321 
Lutheran,  etc..  Appeal,  267 
Lycan  v.  Miller,  472 
Lymam  v.  Morse,  209 
Lyman  v.   Turner,   585 
Lynch  v.  Miller,  28 
Lynde  v.  Estabrook,  598 
Lynn  v.  Hall,  545 
Lyon  V.  Brown   University,   772 
Lyon  V.  Clawson,  585,  808 
Lyon   V.    Dada,    122,    123,    128,   413 
Lyon  V.  Home,  111 
Lyon  V.  Ogden,   30 
Lyons  v.  Campbell,    127,    131.    328, 

409,  414,  419 
Lyons  v.  Hammer,  325 
Lyons  v.  Van  Riper,  47 
Lyon's   Estate,   786 
Lyon's  Will,  199,  284,  362,  363 
Lytle  V.  Beveridge,  522 


M 


McAleer  v.  Schneider,  488,  489,  570 
McAllister  v.  Burgess,  647,  649 
McAnnulty  v.  McAnnulty,  284 
McArthur   v.    Scott,    327,    548,   633, 

656,    659,    663 
McBride  v.  McBride,  46 
McBride's  Estate,  465,  600,  681 
McCabe,  Goods  of,   270 
McCall   V.   Jones,   489 
McCall  V.   McCall,  662,  678 
McCallister  v.  Bethel,  57  6 
McCamant  v.   Nuckolls,   461,   691 
McCambridge  v.  Walraven,  339,  340 
McCans   v.   Board,   240 
McCan's    Succession,    636 
McCarthy,  In  re,   98 
McCartney  v.  Osborn,  517,  554,  666 
McCarty  v.  Fish,  669,  673 
McCarty  v.  Hoffman,  22 
McCauley  v.  Buckner,  561 
McChord  v.  Caldwell,  802 
McClain  v.  Capper,  656,  657,  659 
McClanahan  v.  Williams,  137 
McClary  v.  Stull,  111,  314,  344,  345 
McClellan  v.  Larchar,  575,  684 
McClelland   v.   McClelland,   637 
IMcCloskey  v.  Barr,  313,  335,  489 
McClure  v.  McClure,   132,  273,  274, 

410,   411,   428 
McClure  v.  Spivey,  340,  341 
McClure  v.  Taylor,  487,  588 
McClure's  Appeal,  668,  669 
McClure's  Will,  576 
IMcComas   v.   Amos,   521 
McComb  V.  McComb,  659 
McCommon   v.   McCommon,   23,    97, 

376,  426 
McConnell  v.  Stewart,  658 
McConnell  v.  Wilcox,  570 
MacConnell  v.   Wright,   624 
McConomy's  Estate,  787,  788 
McCoon  V.  Allen,  382 
McCord    V.    Whitehead,    590 
McCorkle  v.  Black,  591 


1038 


TABLE  OF  CASES. 


(References  are  to  sections.) 


McCormick  v.  McCormiek,   333 
McCormick  v.  Sullivant,  28 
McCorn  v.  McCorn,  750,  755 
McCown  V.  Owens,  4G8 
McCrea  v.  Haraszthy,   335 
McCrea's  Estate,  515 
McCullough  V.  Anderson,  576 
McCulloch  V.  Campbell,  382 
McCulloch's   Appeal,    290 
McCullough's  Estate,   186 
McCullum  V.  McKenzie,  282,  287 
McCune  v.   Baker,   595 
McCune  v.  House,   31,   32,  244,  264 
McCurdy  v.  Neal,  223,  311 
McCutcher  v.  Loggins.  325,  330 
McDaniel    v.    McDaniel.    339,     340, 

341,  676 
McDaniel  v.  Pattison,  315 
McDermott  v.  Wallace,  608 
McDevitfs   Estate,   127 
McDevitt,  In  re,  409,  423 
McDonald  v.  McDonald,    324,     328, 

329,   335,   353,   370,  438,  441 
McDonald  v,  Moak,  734 
McDonald  v.  O'Hara,   693,   700 
McDonald  v.  White,  325 
McDonald's  Estate,  736 
McDougall,  /m  re,  598 
McDowell  V.  Oyer,    78 
McDowell  V.  Stiger,  752 
McDowell's  Estate,  741 
McEl fresh  v.  Gnard,   210 
McElwaine  v.  Holyoke  First  Congre" 

gational   Society,  674 
]\IcElwaine,   In   re,    174 
McElwaine's  Will,  203 
McEwen  v.  Fuller,  754 
McFadden  v.  Heffley,  678,  768,  769, 

777 
McFadin  v.  Catron,  23,  98,  102,  125, 

127,  132,  133,  159,  333,  370,  380, 

405,  406,  409,  421,  423 
McFarland  v.  McFarland,  672,  760 
McFatridge  v.   Haltzclaw,   554,   557 
McFeely  v.  Moore,  564 
McGavock  v.  Pugsley,  576 
MfOee  V.  Hall,  474,  582 
McGee  v.  Porter,  158,  177 


McGehee   v.   McGehee,   267,   268 
McGill  V.  Gardner,  670 
McGill's  Appeal,  515 
McGillis  V.  McGillis,  22,  151 
McGlaughlin   v.    McGlaughlin,    729, 

764 
McGovern  v.  McGovern,  487 
McGovran's  Estate,  399,  741 
McC.ough  V.  Hughes,  820 
McGowan  v.  Baldwin,  712,  716 
McGraw  v.  Minor,  570 
McGraw's  Estate,  36,  153 
McGraw's  Will,  405 
McGreevy  v.  McGrath,  744 
McGuire  v.  Bank,  52 
McGurry  v.  Wall,  674 
McHugh    V.    Fitzgerald,     389,    392, 

394,  423,  424,  426 
McHugh   V.   ilcCole,   610,   643,   655, 

700,  707,  746 
Mclntire  v.  McConn,   416,   426 
Mclntire  v.  Mclntire,  230,  270,  302, 

323,  453.  807 
Mclntire  v.  Ramsey,  467 
Mclntire  v.  Worthington,    257 
Mclntire  v.  Wright,   102 
Mclntire  v.   Zanesville,   655 
Mcintosh    V.    Charleston,    152,    154, 

644 
Mcintosh   V.   Moore,    333,    304,   400, 

449 
Mcintosh's   Estate,   522,   737 
McKeegan  v.   O'Neil,   79 
McKelvey    v.    McKelvey,    514,    516, 

554,  557 
McKenna  v.  McMichael,  270,  453 
McKensey  v.  McKensey,  659 
McKeough's    Estate    v.    McKeough, 

488,   819 
ilcKibbon  v.  Feegan,  136 
McKinney's  Estate,  344 
McKinnon  v.  Lundy,   672,    674,  675, 

687 
McKiuT^ou  V.  McKinnon,  54 
McKnight  v.  Walsh,  605 
McLane  v.  Cropper,  803 
McLane's  Estate,   132.  409 
McLain   v.   Howald,   522 


TABLE  OF  CASES. 


1039 


(References  are 

McLarney  v.  Phelan,  284 
McLarney,   In  re,   284 
McLaughlin  v.   McLellan,   116 
McLead  v.  Dell,  240 
M'Leaii  v.  Barnard,  199 
McLean  v.  Clark,  430 
McLean  v.  McLean,  157 
McLean  v.  Robertson,  771,  774,  776 
McLellan  v.  Turner,  561 
McLenahan  v.  McLenahan,  765,  766 
McLeod  V.  McNab,  311 
McMahon  v.  McGuire,  755 
McMahon  v.  McMahon,  331 
McMahon's    Appeal,    775 
McMaken  v.  McMaken,  324 
McMaster  v.  Keller,  338 
McMaster  v.  Seriven,  333,  365,  405 

409,  415,  421 
McMasters  v.  Blair,  98 
McMasters   v.   Negley,    676 
McMechen  v.  McMechen,  180,  382 
McMichael  v.   Bankston,   230 
McMichael  v.  Pye,  467 
McMicken  v.  McMicken  University, 

492 
McMillan  v.  Farrow,  576 
McMillan  v.  McDill,  401,  424 
McMulkin,  In  re,  222 
McMuch  V.  Charles,  400 
McMurry   v.   Stanley,   463,   473 
McMurry  v.  Whitfield,  780 
McNamara,  Succession  of,  78 
McXaughton  v.  McNaughton,   141 
McXeely  v.   Pearson,   335,   434,  439 

440 
McNeil  V.  Masterson,  506 
McNicoll  V.  Ives,  29 
McNutt  V.  McConib,  684 
McOnie  v.  Whyte,  52 
McRae  V.  McRae,  684 
McRainey  v.  Clark,  268 
McReynolds  v.  Counts,  737 
McRejmolds  v.  Graham,  669-802 
McSpadden  v.  Farmer,  340 
McQueen  v.  Lilly,  554,  747,  749,  755 

820 
McQuire  v.  Moore,   579 


to  sections.) 

McTaggart   v.   Thompson,    95,    279, 

366,  400 
Maas  V.  Sheffield,  89 
Mace  V.  Cushman,  515 
Macduff,  In  re,  654 
Machener's  Estate,  576 
Machir  v.  Funk,  698 
Machray  v.  Higgins,  607 
Mack's  Appeal,   323,   639,  641,  643 

649 
Mackall  v.  Mackall,  23 
Mackay  v.  Mackay,  599 
Mackay's  Will,  205 
Mackenzie  v.  Mackenzie,  141 
Macknet  v.  Macknet,  727 
Mackrell  v.  Walker,  618 
Macleay,  In  re,   684 
Maddock,    Goods   of,   215 
Maddox  v.  Maadox,  23,  96,  102,  127 
132,  382,  385,  387,  397.  405,  409, 
414,   421,   426,   681,   682 
Maddox  v.  Rowe,  79 
Madison  v.  Andrew,  698 
Madison  v.  Larmon,  326,   526,  546 

570,  582,  626,  628,  631,  663,  665 
Madlock,  Goods  of,  299 
Madonnell  v.   Purcell,   307 
Magaw  V.  Field,  522 
Ma»ee  v.  McNeil,  61,  62 
Magoohan's  Appeal,   162 
Maguire  v.  Moore,  557 
Mahoney  v.  Holt,  769 
Main  v.  Ryder,  132,  204,  411 
Major  V.  Williams,  272 
Male  V.  Williams,  668,  802 
Male's  Case,  237 
Male's  Will,  236 
Mallery  v.  Young,  121,  400,  423 
Malona  v.  Schwing,  563,  676,  812 
Malone  v.  Cornelius,  312,  318,  319, 

320 
Malone  v,  Hobbs,  255 
Manatt  v.  Scott,  23,  116,   385,  386, 
391,  399,  400,  416,  423,  426,  427 
Mandeville  v.  Parker,  210,  223 
Mandlebaum  v.  McDonnell,  684  692 


l040 


TABLE  OF  CASES. 


(References  are 

Manifold's  Appeal,  799 

Manley's   Executor   v.    Staples,    109, 

126,  333,  362,  384,  408 
Manners  v.  Library  Co.,  646 
Mann   v.   Jackson,    681 
Mann  v.  Martin,  504,  605 
Mann,  Goods  of,  183 
Mann's  Estate,  670 
Manning  v.  Pippen,  70,  74,  83 
Manning  v.  Purcell,  496 
Manning  v.  Thesiger,  799 
Manogue  v.  Herrell,  102,  361,  423 
Mansfield  v.  Mansfield,  571 
Mansfield  v.  Mix.  616 
Mansfield  v.  Shelton,  576 
Manton  v.  Tabois,  492 
Manuel  v.  Manuel,  31,  315 
Manuel  v.   WulflF,   150 
March   v.   Huyter,    66,    67,   68 
Marchant's   Estate,    166,   167 
Marchemer's  Estate,  726 
Marcy  v.  Marcy,  319 
Margary  v.   Robinson,   182 
Mark's   Succession,  476 
Markham  v.   Huflord,   669,  679 
Markle's  Estate,  507,  542 
Markley's  Estate,   7  55 
Markley's   Appeal,    596 
Marks  v.  Bryant,  235 
Marlborough  v  Godolphin,  89 
Marlow  v.  Hobbs,  255 
Marquez's  Succession,  241 
Marr  v.  Marr,  244 
Marsh  v.  Hoyt,  545,  668 
Marsh  v.   Love,  691 
Marsh  v.  Marsh,   101,  273,  274 
Marsh  v.  Taylor.  803 
■  Marsh  v.   Wheeler.   669 
Marshall   v.   Augusta,   579,   659 
Marshall  v.   Hadley,   464,  471,  473, 

483 
Marshall    v.    Marshall,     278,      439, 

440,  662 
Marshall  v.   Mason,  222 
Marshall  v.  Porter,  141 
Marshall  v.  Reuch,  782 
Marshall    v.    Wheeler,    693 
Marshall's  Appeal,  463 


to  sections.) 

Marshall's  Estate,  618,  701 
:\Iarshall,   Goods   of,   248 
Marston  v.  Judge  of  Probate,  194 
Marston  v.  Ma.rston,   157,  264,  268 

284 
Marston  v.  Norton,  89,  90,  93 
Marston  v.  Roe,  143,  148,  283 
Martien  v.  Norris,  724 
Martin  v.  Fort,  624 
Martins  v.  Gardner,  254 
Martin  v.  Good,  751 
Martin  v.  Hamlin,  161 
Martin  v.  King,  432 
Martin   v.   Mc Adams,   446,   362 
Martin  v.  Martin,  56,  598 
Martin  v.  Mitchell,  117 
Martin  v.  Seigler,  681 
Martin  v.   Smith,  483 
Martin  v.  Stovall,  336 

Martin  v.  Stubbings,  136 

Martin   v.   Thayer,   85,  94,   97,   105, 
120,  132 

Martin  v.  Toet.  577 

Martin  v.  Trustees  of  Mercer  Uni- 
versity, 545,  551 

Martin,  Appeal  of,  340 

Martin's  Estate,  230,  466,  695,  802 

Martin,  Goods  of,   63 

Martin,   In  re,   409,   666 

Martindale    v.  Smith,  138 

Martinez  v.  Martinez,  234,  239 

Marvin  v.   Ledwith,   737 

Marwick  v.  Andrews,  674 

Marwood   v.   Turner,   278 

Marx  v.  McGlynn,   150,   419,   427 

Mason  v.  Baily,  513,   515 

Mason  v.   Broyles,   618 

Mason  v.  McLean,  280,  291,  292 

Mason  v.  Pate,    595 

Mason  v.  Roll,    809 

Mason  v.  Smith,    269 

Mason  v.  Williams,    410 

INIason.    In    re,    623 

Masonic    Benevolent   Association    v. 
Bunch,    136 

Masonic    Association    v.    Jones,    I.j'j 

Masonic    Association     v.     Severson, 
136 


TABLE  OF  CASES. 


1041 


(References  are  to  sections.) 


Maskell   v.   Goodall,    737 

Massey  v.  Huntington,  52,  57 

Massey  v.   Massey,    312 

Massie    v.    Griffin,    64 

Master  v.   Scriven,   127 

Masters    v.    Masters,   819 

Masterson   v.    Townsliend,    468 

Mather  v.  Copeland,  551 

Matheny's  Estate,  138 

Mathews  v.  Kirshner,  467 

Matthews  v.  Moses,    52 

Matthews  v.  Warner,   244 

Mauck   V.   Melton,   75 

Maud  V.  Maud,  79 

Maul's  Estate,   54,  279 

Maund  v.  Maund,  340,  341 

Maurer   v.   Bowman,   464 

Maurer    v.    Naill,    325 

Maverick  v.  Reynolds,  102 

Maxwell  v.  Hill,  194,  199,  380,  423 

Maxwell   v.    Maxwell,    62 

Maxwell  v.  Sargent,   599 

Maxwell  v.Sawyer,   609 

Maxwell's   Will,   47 

May  V.  Bradlee,  392,  423 

May  V.  Jones,  577,  724,  814 

May  V.  May,    806 

May  V.  San  Antonio,  562 

May   V.    Slaughter,    144 

Mayd,   In  re,    63 

Mayer   v.   Gowland,   278 

Maynard    v.    Tyler,    105,    108,    120, 

127,   412,   426 
Ma^Tiard  v.  Vinton,    127,   210,    211, 

212,    407,    409 
Maynes  v.   Hazleton,   248 
Mayo  V.  Jones,   344,  383 
Mayo  V.  Tudor,   139,   715,   723 
Mayo  V.  Mayo,  209,  366,  374 
Mazurie's   Appeal,   573,    613 
Meacham  v.  Graham,  596,  618,  624, 

676,  806 
Mead  v.  Maben,  676 
Meade's   Estate,   46 
Mealing  v.   Pace,   157,   188 
Means   v.    Means,    44 
Means   v.    Moore,    261,    301 


Mears  v.  Mears,  312,  323,  330,  409, 

630 
•Meck's  Appeal,  49 
Meddis    v.    Bull,    692 
Medill    V.    Snyder,    106,    107,    331, 

727 
Medlock  v.  Merritt,   339 
Meech  v.  Meech,  723 
Meehan  v.  Rourke,  219,  385 
Meek  v.  Briggs,  614,  618,  637,  685 
Meeker  v.  Meeker,  397,  410 
Meeks  v.  Lofley,  121,  329,  367 
Meese  v.  Keefe,  28 
Meier  v.  Lee,  151 
Meis  V.  Meis,  398,  773,  775 
Meisenheimer  v.  Bost,  507 
Meisenheimer  v.   Sifford,  751 
Melaney  v.   Morrison,   392 
Melia  v.   Simmons,   341 
Melick  V.   Darling,   710 
Melizet's  Appeal,  137 
Mellen  v.  Mellen,  691,  718,  806,  808 
Mellon  V.  Mellon,  723 
Mellows  V.  Mellows,  136 
Mence  v.  Mence,  254 
Mendell  v.  Dunbar,  210,  215 
Mendenhall  v.  Mendenhall,  721 
Mendenhall  v.  Mower,  591 
Mendenhall  v.  Tungate,  97,  102,  116, 

398 
Mendenhall's  Appeal,  276,  277 

Mercer  v.  Kelso,  110 

Mercer  v,  Mackin,     198,    438,    441, 
449 

Mercer's  Sviccession,  268 

Merchant's  Will,  204 

Mercur's  Estate,  695 

Meredith   v.   Heneage,   611 

Merkle's  Appeal,  473 

Merriam  v.  Simonds,  532,  545 

ISIerriam's  Estate,  341 

Merriam's  Will,   315 

Merrick  v.  Merrick,  487 

Merrill  v.  Bullock,  624 

Merrill  v.  Curtis,  555 

Merrill  v.  Emery,    719 


1042 


TABLE  OF  CASES. 


(References  are 

Merrill  v.  Hayden,    291,    292,    611, 

740 
Merrill  v.  Preston,   515 
Merrill  v.  Rush,  102 
Merrill  v.  Wisconsin    Female    Col- 
lege, 6/3,  688 
Merriman  v.  Merriman,  384 
Merriman's  Appeal  23,  85,  132,  386, 

390,    394,    426,    430 
Merritt  v.  Merritt,   607 
Mersman  v.  Mersman,  691,  820 
Mervin,   In  re,   632 
Meserve  v.  Meserve,    142,   382,   383, 
394,  397,  405,  406,  410,  417,  427, 
428 
Metcalfe  v.  Metcalfe,  684,  685 
Metcalfe  v.  Sweeney,   534 
Metropolitan  Savings  Bank  v.  Mur- 
phy, 56 
M.    E.    Missionary    Society    v.    Ely, 

320,   343 
Meurer's  Will,  209,  210,  218 
Meyer  v.  Eisler,   659 
Meyer  v.  Fogg,   199,  325 
Meyer  v.  Henderson,  321,   325,  329, 

331 
Meyers  v.   Barrow,  295 
Meyers  v.  Smith,  312,  313 
Mickle  V.  Matlock,  226 
Midgett  V.  Midgett,  588 
Middleditch   v.   Williams,    104,    105, 

106,  111,  325,  423 
Middleton  v.  Middleton,  661 
Middleton,    Goods    of,    276 
Mies,  In  re,  186 
Milburn  v.   Milburn,   290 
Miles's  Appeal,  249,   254,   300,   301, 

432,  676 
Millar's   Appeal,   788 
Millay  v.  Wiley,  199,  362 
Miller  v.  Brown,  304 
Miller  v.  Carlisle,  524,  562 
Miller  v.  College,   54 
Miller  v.  Cooch,  750,  756 
Miller  v.  Drane,  800 
Miller  v.  Gilbert,    571 
Miller  v.  Huddlestone,  474 
Miller  v.  Holt,  49 


to  sections.) 

Miller  v.  Lake,  761 

Miller  v.  McNeil,  222 

Miller  v.  Miller,  333,  406,  409,  425, 

427,  760 
Miller  v.  Oestrich,  97,  112,  127,  128, 

384 
Miller  v.  Phillips,  280,  281,  284 
Miller  v.  Potterfield,  576,  577 
Miller  v.  Shumaker,  241 
Miller  v.  Stepper,   137 
Miller  v.  Swan,  313,  315,  341 
Miller  v.  Tilton,   562 
Miller's  Appeal,  507,  788 
Miller's  Estate,    112,   321,  324,   326, 

341,  424,  496 
Miller's  Will,  323 
Millican  v.  Millican,  52,  53 
Millikin  v.  Welliver,  719,  732 
Millington  v.  Hill,  754 
Mills  V.  Bailey,  570 
Mills  V.  Britton,  602 
Mills  V.  Davison,   641 
Mills  V.  Franklin,  561 
Mills  V.  Harris,  702,  704 
Mills  V.  McCaustland,  717 
Mills  V.  Millward,  261,  348 
Mills  V.  Newberry,  610,  611 
Mills  V.  Smith,   793 
Mill's  Appeal,  104 
Milner,  In  re,  698 
Milnes  v.  Foden,  49,  53 
Milnes  v.   Slater,   142 
Miltenberger    v.    Miltetaberger,    47, 

IGO,   192,   190 
Milwaukee     Protestant      Home      v. 

Becher,  25,   746 
Mimms  v.  Delk,  689 
Mims  v.  Macklin,  610,  615,  622,  676 
Miner's  Will,  506 
Minkler  v.  Minkler,  437,  449 
Minkler  v.  Simons,    466,    806,    807, 

808 
Minnig  v.  Batdorf,  548 
Minor  v.  Ferris,  488 
Minor  v.  Guthrie,  449 
Minor  v.  Taylor,    806 
Minor  v.  Thomas,  102 


TABLE  OF  CASES. 


1043 


(References  are 

Minot  V.  Baker,  507 

Minot  V.  Harris;  515,  547 

Minot  V.  Paine,  602 

Minot  V.  Tappan,  547 

Minot,  Petitioner,  288,  292,  293 

Minter's  Appeal,   742 

Min  Young  v.  Min  Young,  600 

Mitchell  V.  Campbell,  676 

Mitchell  V.  Corpening,  116,  394 

Mitchell  V.  Donahue,    58,    130,    229 

Mitchell  V.  Hogg,   338 

Mitchell    V.    Kimbrough,    21,     305, 

306 
Mitchell  V.  Mitchell,  59,  205,  611 
Mitchell    V.    Pittsburg,      etc.      Ry., 

526,  593 
Mitchell  V.  Thomas,   117 
Mitchell  V.  Thorne,  527 
Mitchell  V.  Viekers,  238,  447 
Mitchell's    Estate,    127,    132,    426 
Mitchelson,  In  re,  276 
Mitchener  v.  Atkinson,  462 
Moale  V.  Cutting,  221,  222 
Mobley  v.  Cummings,  616 
Moerhing,  In  re,   577 
Moflfet  V.  Elmendorf,  507,  543 
Moffett  V.  Moffett,  240 
Moffew   V.   Ry.    Co.,    576 
Molineaux  v.  Reynolds,  507,  744 
Monarque  v.  Monarque,  4^1 
Mondorf's   Will,    132,   411,    410 
Monnsey  v.  Blamire,  515 
Monroe  v.   Barclay,   132,  411 
Monroe  v.  Liebman,   241 
Monson    \.    New    York    Security    & 

Trust  Company,  602 
Montague  v.  Allen,  98,  414 
Montefiore  v.  Montefiore,  264 
Montgomerie  v.  Woodley,  659 
Montgomery  v.  Clark,  312 
Montgomery  v,  Foster,  325 
Montignani  v.  Blade,  514,  515,  637, 

806 
Moodie  v.  Read,  227 
Moody  V.  Johnston,  357 
^Tnon  V.  Moon,    474 
Moon  V.  Hapford,  520 


to  sections.) 

Mooney  v.  Olsen,  126,  450 

Moore  v.  Alden,  774,  776,  813 

Moore  v.  Allen,  382 

Moore  v.  Beckwith,  755 

Moore  v.  Blauvelt,  409 

Moore  v.  Davidson,  755 

Moore  v.  Davison,  803 

Moore  v.  Dimond,  551 

Moore  v.  Feig,  663 

Moore  v.  Gubbins,    324,     327,    394, 

423 
Moore  v.  Hawkins,  146 
Moore  v.  Heineke,  124,  394,  411 
Moore  v.  King,   216 
Moore  v.  Lyons,  650,  676 
Moore  v.  McWilliams,    194 
Moore  v.  Moore,  149,  152,  271,  539, 

641,   651,   768,   769,   771,  803 
Moore  v.  Perry,  672,  673 
Moore  v,  Powell,  464,  465,  488 
Moore  v.  Rake,  593 
Moore  v.  Robbins,  707 
Moore  v.  Schindehette,  676 
Moore  v.  Spier,  216,   394,  414 
Moore  v.  Stephens,  72 
Moore  v.  Steele,  157 
Moore  v.  Weaver,  551 
Moore's  Estate,  663 
Moore,  Goods  of,  207 
Moorehead's   Estate,   591,   592,   593, 

631 
Moorehouse  v.  Cotheal,  561,  593 
Moores  v.  Hare,  579 
Moores  v.  Moores,  660 
Mooreland  v.  Brady,  173 
Moorhouse  v.  Lord,   269 
Moorman  v.  Crockett,  788 
Moran  v.  Moran,  461,  643 
Mordecai  v.  Boylan,  277 
Mordecai  v.   Schirmer,  692 
Moreland  v.  Brady,  179,  487 
Morey  v.  Sohier,  264,  279,  284 
Morgan  v.  Davenport,  283 
Morgan  v.  Dodge,  341 
Morgan  v.  Halsey,  619 
Morgan  v,  Holford,    143 


1044 


TABLE  OF  CASES. 


(References  are  to  sections.) 


Morgan  v.  Huggins,  489,  506 

Morgan  v.  Ingram,   192 

Morgan  v.  Ireland,  280 

Morgan  v.  McXeely,    142,   477,  488, 

489 
Morgan  v.  Morgan,  681 
Morgan  v.  Robbins,   676 
Morgan  v.  Stevens,   234 
Morgan,  In  re,  459,  618 
Moriarity  v.  Moriarity,  97,  382 
Morison  v.  Turnour,   181 
Morley  v.  Rennoldson,  462,  681 
Morningstar  v.  Selby,  349 
Morse  v.  Blood,  684 
Morse  v.  Hackensack     Sav.      Bank, 

764 
Morse  v.  Hayden,  675,  729,  739,  742, 

743,  762,  764,  777 
Morse  v.  Lyman,  806 
Morse  v.  Macrum,    622.    759,   803 
Morse  v.  Morrell,  599,  602 
Morse  v.  Morse,  295 
Morse  v.  Scott,  105 
Morse  v.  Sterns,  813 
Morse  v.  Thompson,  89 
Morrell  v.  Dickey,  53 
Morris  v.  Bolles,  29,  513,  547,  600, 

629,  633 
Morris  v.  Clark,  79 
Morris  v.  Garland,  773,  775 
Morris  v.  Harris,  770 
Morris  v.  Henderson,  477 
Morris  v.  Morton's    Ex'rs,    90,    230, 

333.  397 
Morris  v.  Sickly,  755,  817 
Morris  v.  Stokes,   131,  424 
Morris  v.  Swaney,    157,    434 
Morrison  v.  Bowman,  683 
Morrison  v.  Truby,  469,   676 
Morrison  v.  Tourman,  203 
Morrison's   Estate,   546 
Morrow's  Appeal.  61,  62 
Mortgage  Trust  Company  v.  Moore, 

162,  167,  749 
Morrill  v.  Morrill,  192 
Mortimore  v.  Mortimore,  547.  549 
Morton  v.  Heidorn,    366,    405,    407, 

408 


Morton  v.  Ingraham,   199 
Morton  v.  Onion,    281,    284,    340 
Morton  v.  Woodbury,  506,  507,  510 
Morton,    Goods    of,    248,    249,    251, 

252 
Morvant's  Succession,  229,  345,  377 

446 
Mosier   v.    Horman,    323,    340,    341, 

366 
Mosse  V.  Cranfield,  496 
Mosser  v.  Lesher,  688 
Mosser   v.    Mosser,    53,    57,    65,    93, 

105    • 
Mount  V.  Van  Ness,  766 
Mourning  v.  Missouri   Coal   Mining 

Co.,  681 
Moushand  v.  Rodetsky,  562 
.  Mower  v.  Verplanke,  317,  356,  357 
Mowry  v.  Heney,  52 
Moyer  v.   Swygart,  47,  330,  344 
Moyses  v.   Neilson,  325 
Mudd  V.  Mullican,  562 
Muffett,  In  re,  528 
Muh's   Succession,   249,   254 
Muhlenburg's   Appeal,   669 
Mulilke  V.  Tiedemann,  684 
Muir  V.  Miller,  423 
Muirhead  v.  Muirhead,  737 
Muldoon  V.  Trewhitt,  614 
Mull  V.  Mull,  668 
Mullarky  v.  Sullivan,  467,  551 
Mullen  V.  McKehy,  21 
Muller  V.   St.   Louis  Hospital  Asso- 
ciation,   419 
Mulligan  v.  Lamb,  689 
Mulligan  v.  Leonard,  218,  233,  236, 

237 
Mulligan's  Estate,  507,  764 
Mullin's  Estate.  176.  218,  389 
Mullock   V.    Souder,   278 
Mullreed    v.    Clark,    594,    626,    637, 

662. 
Mulvane    v.    Rude,    560,    562,    595. 

684 
Mundorflf   v.   Kilbourn.   79 
Mundy  v.  Mundy.  21,  203.  218.  222. 

223,  226,  227,  247,  255,  261.  281 
Murdock  v.  Bridges,  56 


TABLE  OF  CASES. 


1045 


(References  are  to  sections.) 


Murfett  V.  Smith,  94 

Mur field,  In  re,  311 

Murphey  v.  Whitney,  75 

Murphree  v.  Senn,  382,  384,  386, 
390 

Murphy  v.  Carlin,  59,  612 

Mtirphy  v.   McKeon,   738,   739 

Murphy's  Estate,  269,  619,  643,  649 

Murray  v.  Murphy,  217 

Murray  v.  Murray,  773 

Murray,  Goods  of,   314 

Murry  v.  Hennessy,  176,  325,  370, 
382 

Murry  v.  Murry,  21 

Mussoorie  Bank  v.  Raynor,   611 

Musther,  In  re,  546 

Mutler's  Estate,  462 

Mutual  Life  Insurance  Co.  v.  Ship- 
man,   698 

Myatt  V.  Walker,  397 

Myers   v.    Hauger,    96,    409 

Myers  v.  Myers,   138,   773,   775 

Myers  v.  Norman,   488 

Myers  v.  Vanderbilt,  159 


N 


Nading  v.  Elliott,  597,  606 

Naglee's  Appeal,  684 

Naglee's  Estate,  476 

Nailing  v.  Nailing,  133 

Namioc'k  v.  Horton,  141,  142 

Napfle's  Estate,  102.  117 

Napier  v.  Anderson,  346 

Napier  v.  Davis,   472 

Nash  V.  Ober,  602,   773 

Nash  V.  Reed.    199 

Nash  V.  Simpson,    571,    681 

Nat  V.  Coons,  32 

Nathan  v.  Hendricks,  663 

National  Bank  of  Commerce  v. 
Smith,  619 

National  Bank  v.  Wheelock,  133 

National  Safe  Deposit,  etc.  Com- 
pany V.  Sweeney.  329 

Naugher  v.  Patterson,  53 


Nauman  v.   Weidman,   651 

Naylor  v.  Godman,  676 

Neal  V.  Hodges,   522 

Nealis  v.  Jack,  595 

Nebinger's  Estate,  466 

Needham  v.  Needham,  219 

Needham   v.   Rourke,   219 

Needles  v.  Needles,  146 

Neel  V.  Potter,  423 

Neeley  v.  Boyce,  576,  659 

Neeley's   Estate,   513,   515,   597 

Neely  v.  Phelps,  616 

Neer  v.  Cowhick,  230 

Neff  V.  Nef}',  602 

Neff's  Appeal,   269,   306,   507 

Negley  v.  Gard,  462 

Negus  V.  Negus,  287 

Neil  V.  Neil,   117,  210 

Nellons  v.  Truax,  752 

Nelson  v.  Biue,  515,  669 

>lelson  V.  Brown,  713 

Nelson  v.  Combs,   473,    676 

Nelson  v.  Gushing,  642 

Nelson  v.  Kownslar,   716 

Nelson  v.  ]SJelson,  599,  604 

Nelson   v.    Ponicroy,    509,    669,    735 

736 
Nelson  v.  Potter,  28,  357 
Nelson  v.  Russell,  659,  664,  676 
Nelson  v.  Whitfield,  444 
Nelson  v.  Worthington,  792 
Nelson,  Goods  of,  276 
Nelson's    Will.    205,    218,    267,    375, 

377,  410 
Nes  V.  Ramsay,  572,  594 
Nesbit  V.   Wood,  758 
Ness  V.  Davidson,  689,  691 
Neuber  v.   Shoel,   139 
Neville  v.  Dulaney,  2,  474,  535 
Nevin's   Estate,   597 
Newberry  v.  Hinman,  658 
Newcomb  v.  Newcomb,  97,  385,  390 
Newcomb  v.  Webster.  268,  269 
Newconib's  Will,  755 
Newell  V.  Hancock,  686 
Newell  V.  Homer,  434 
Newell  V.  Nichols,   674 


1046 


TABLE  OF  CASES. 


(References  are  to  sections.) 


New    England     Mortgage     Security 

Co.  V.  Buice,  575,  603 
Kew    England    Trust    Company    v. 

Pitkin,  600 
Newhard  v.  Gundt,  383 
Newman  v.  Clyburn,  480 
Newman  v.  Steel  Co.,  357 
New  Orleans  v.  Hardie,  461,   744 
Newport  v.  Newport,  762 
Newport  Bank  v.  Hayes,  668 
Newport  Water    Works    v.    Sisson, 

700,  708 
Newsonie  v.  Bowyer,  89 
Newson   v.   Holesapple,   676 
Newton  v.  Field,  81 
Newton  v.  Society  162,  166 
Newton  v.  Stanley,  770 
New  York  Life  Ins.  etc.  Co.  v.  Liv- 

ingston,  698 
N.  Y.  L.  &  W.  R.  Co.,  In  re,  676 
Nicewander  v.  Nicewander,  97,  104, 

132,  368,  385 
Nichols  V.  Allen,  141 
Nichols  V.   Boswell,   676,   817 
Nichols  V.  Chandler,  49,  53 
Nichols  V.  Eaton,   685 
Nichols  V.  Emery,  49,  52 
Nichols  V.  Lancaster,  716,  776 
Nichol's  Estate,  321 
Nicholas  v.  Kershner,  23 
Nicholls    V.    Nicholls,    47 
Nicholls  V.  Osborn,  492 
Nicholson  v.  Commissioners  of  Dare 

County,  801 
Nicholson  v.  Cousar,    663,  665 
Nicholson  v.  Drennan,  468 
Nickerson  v.   Bragg,  773 
Nickerson    v.    Buck,    173,   203,   205, 

372,  373 
Nicrosi  v.  Phillipi,  150 
Nieman  v.  Schnitker,  94,  333,   385, 

400 
Nightingale  v.  Burrell,  466,  594 
Niles  V.  Alray,  555 
Niles   V.   Gray,   561,   562,   594 
Nimmons  v.  Westfall,  689,  720,  732 
Nixon  V.  Armstrong.  193,  196 
Nixon  V.  Bobbins,    669 


Noble  V.  Ayres,  474 

Noble  V.  Burnett,  199 

Noble  V.  Enos,    93 

Noble  V.  Teeple,   589,   590 

Noble's   Estate,    597 

Noble,  In  re,   191,   196,   199 

Nock  V.  Nock,  212 

Nolan  V.  Gardner,  234 

Norcott  V.  Gordon,  776 

Norris  v.  Clark,  73,  476 

North  Carolina  School  v.  North  Car 

olina  Institute,  645 
Northcutt    V.    Northcutt,    173,    178, 

179 
Nor  they  v.  Paxton,  478 
Norton  v.   Paxton,   102,   127,   382 
Norway  Savings  Bank  v.  Merriam, 

56 
Norwood  V.  Mills,  743 
Nottage,  In  re,  054,  768,  769 
Nourse,  In  re,  681 
Nowack  V.   Berger,   70,   73,   75,  780 
Nowland  v.  Welch,  594 
Noyes  v.  Southworth,  284 
Noyes's   Will,   264,  265,   277,   450 
Nueber  v.  Shoel,  23 
Nunn  V.  O'Brien,  574,  611 
Nussear  v.  Arnold,  424 
Nutt  V.   Norton,   283.   284 
Nutter  V.  Vickerv,  532,  742 


Oades  v.  Marsh,  497 

Oakley  v.  Taylor,  312,  315 

Ober    V.   Hickox,    544 

Obert  V.  Hammel,  341 

O'Brien   v.   Dougherty.   589,  750 

O'Brien  v.   Dwyer,   116 

O'Brien  v.  Gallagher,  222 

O'Brien   v.    Spalding,   97.    364 

O'Byrne  v.  Feeley,  566 

Occleston  v.   FuUalove,   156 

O'Connor  v.  Gifford,  650 

O'Connor  v.  Madison,  102,  333.  390 

Odell  V.  Odell,  640,  641,  642 


TABLE  OF  CASES. 


1047 


(References  are  to  sections.) 


O'Dell  V.  Rogers,  312 

Odenwaelder    v.    Shorr,    205,    227, 

269 
O'Donnell  v.  Rodiger,  382,  384 
Offut  V.  Divine,  695 
Offut  V.  Offut,  236 
Ogier's  Estate,  46 
Ogle  V.  Reynolds,  491,  692 
Ogle  V.  Tayloe,  755 
Ogle's  Estate,  49,  52 
Ogsbury  v.  Ogsbury,  487 
O'Hagan,   Will   of,   372 
Oldham  v.  York,  466,  485 
Olding,  Goods  of,  222 
Old  South  Society  v.  Crocker,  639, 

643 
Olerick  v.  Ross,  223 
Oliffe  V.  Wells,  168 
Olliver,  In  re,  219 
Olmstead  v.  Webb,   126,  323,  428 
Olmstead's    Estate,    249,    254,    256, 

276,  344,  345,  448,  449,  450 
Olney  v.  Balch,  690 
OIney  v.   Lovering,  513 
O'Loughlin,  Goods  of,  478 
Onderdonk  v.  Onderdonk,  809 
O'Neall  V.  Boozer,  473 
O'Neal  V.  Caulfield,  643,  645,  647 
O'Neall  V.  Farr,  125,  411 
O'Neil  V.  Mead,  765 
O'Neil   V.   Smith,   234 
O'Neil's  Estate,  58 
O'Neil's  Will,  164 
O'Neill  V.  Owen,   203 
O'Neill  V.  Smith,    234,    306 
O'Neill's   Will,   162,   186 
Onions  v.  Tyrer,  260,  275 
Opel  V.  Shoup,  151,  681 
Orchardson  v.  Cofield,  96,  104,  108, 

111,  126,  128,  420 
Ordway  v.  Dow,  548 
Oregon   Moitgage    Co.    v.    Carsters, 

150 
Orgain  v.  Irvine,  47,  157,  171,   188, 

264 


Ormsby  v.  Webb,  338,  386 

O'Rourk  V.  Sherwin,  572 

Orr  V.  Moses,  462 

Orr   V.    Orr,   820 

Orser  v.   Orser,  374 

Orth   V.   Orth,   74,    124,   410 

Orton's  Trust,  526 

O'Rourke  v.   Beard,   561 

O'Rourke   v.    Sherwin,    691,    692 

Osborn  v.  Bank,   292 

Osborn  v.  Cook,   223,  227 

Osborn  v.  Damniert,  21,  35 

Osborne  v.  Davies,   330 

Osborne  v.  Leak,  312 

Osgood  v.  Bliss,  284 

Osgood  V.  Breed,  85,  90,  91,  93 

Osterman  v.  Baldwin,  150 

Otis  V.   Brown,   209 

Otis  V.  Dargon,  319 

O'Toole  V.  Brown,  473,  507 

Otterbach  v.  Bohrer.  524,  631 

Otto   V.   Doty,    111 

Otway  V.  Sadleiv,  281 

Ouachita   Baptist   College  v.    Scott, 

110,   325,   397 
Ould  V.   Washington  Hospital,  640, 

641 
Ousley  V.  Anstruther,  492 
Ousley  V.  Witheron,  385 
Outland  v.  Outland,  751 
Overby  v.  Gordon,  330,  341,  370 
Overall  v.  Bland,  130 
Owen  V.  Bryant,  156 
Owen  v.  Eaton,   656,  668,  669 
Owen  V.  Smith,  52 
Owen,  In  re,   196,  495 
Owens  V.  McNally,   70,   79 
Owens  V.  Sinklear,    329 
Owens  V.  Williams,  32 
Owings'   Case,    113 
Owston,  Goods  of,  117 
Oxford,    Earl    of,   v.    Churchill,    524 
Oyster   v.   Knull,   59,   612 
Oyster  v.  Orris,  574 


1048 


TABLE  OF  CASES. 


(References  are  to  sections.) 


Packard  v.   Packard,   659 
Pack  V.  Shanklin,  48,  457,  460 
Packer  v.  Packer,  21 
Paddleford's   Estate,   206,   269,   277, 

364,  448 
Page  V.  Eldredge     Public      Library 

Association,  719,  768,  775 
Page  V.  Foust,  478 
Page  V.  Leapiiigwell,  774 
Page  V.  Page,  240 
Page's  Estate,  28,  34 
Page,  In  re,  366,  437,  438,  441 
Page's  Will,  237 
Paget  V.  Melcher,  669 
Paine    v.    Forsaith,    142,    265,    279, 

489 
Paige  V.  Brooks,  249 
Paisley's  Appeal,  613 
Palethorp  v.  Palethorp,  566 
Palmer  v.  Dunham,    546 
Palmer  v.  Horn,   522,   526 
Palmer,    In    re,    507 
Palmer  v.  Palmer,    240 
Palmer  v.  Union    Bank,    629,    632, 

645 
Panaud  v.  Jones,  199 
Parish  v.  Ferris,  594 
Paris  V.  Winterburn,    684 
Park  V.  American  Home  Missionary 

Society,  576.  696 
Parker  v.   Churchill,  545,   631,   640, 

641 
Parker  v.  First  National  Bank,  759 
Parker  v.  Hayden,  712 
Parker  v.  Parker,      312,     324,    470, 

675.  710 
Parker  v.  Johnson,  602 
Parker  v.  Lamb,  278 
Parker  v.  Seeley,     602,     609,     689, 

719 
Parker  v.  Stephens,  49 
Parker  v.  Leach,  548,  551 
Parker  v.  Linden,  707 
Parker,  In  re.  25,  532, 
Parkison  v.  Parkison,  234 


Parks  V,  Kimes,  470 

Parnell  v.  Parnell,  611 

Parramore  v.  Taylor,  215 

Parrot  v.  Avery,  494 

Parrott  v.  Graves,  77 

Parry's   Estate,   495 

Par  sell  v.  Stryker,  79 

Parsons  v.  Freeman,  278 

Parsons  v.   Lanoe,  02 

Parsons  v.  Parsons.  401,  423 

Partridge   v.   Cavender,   685 

Paschal  v.  Acklin,  23 

Paske  v..Onat,  414 

Pastene  v.  Bonini,  511 

Patch  V.  White,  487,  544 

Patchen  v.  Patchen,  546 

Pate  V.  French,  563,  676,  814 

Pate  V.  Pate,   146 

Paton  V.  Ovmerod,  267,  820 

Patrick's   Estate,  555 

Patrick  v.   Simpson,  475 

Patten  v.  Cilley,  330,  382,  387,  408, 

416,  428,  807 
Patten  v.  Herring,  685,   763,   759 
Patten  v.  Tallman,  192,  199 
Pattee  v.  Stetson,  325 
Patterson  v.  Earhart,  676 
Patterson  v.  Hawthorne,  515,  668 
Patterson  v.  Hickey,   437 
Patterson  v.  Lamb,    423 
Patterson  v.  Madden,  566,  662,  674 
Patterson  v.  Patterson,  752 
Patterson  v.  Ransome,  216,  217 
Patterson  v.  Read,  473 
Patterson's   Appeal,   467 
Patterson's  Estate,  688 
Patton   V.   Church,   373 
Patton  V.  Hope,  47 
Patton  V.  Ludington,  742 
Patton  V.  Patton,  21 
Patty  V.   Goolsby,   576 
Pawtucket  v.  Ballou,  215 
Paxton  V.  Bond,   696 
Payne  v.  Banks,   382 
Payne  v.  Johnson,  576,  698 
Payne  v.  Parsons,  308 
Payne  v.  Payne,    139,    217,    218 


TABLE  OF  CASES. 


1049 


(References  are 

Peacock  v.  Monk,  92 

Peake  v.  Jenkins,  174,  190,  217 

Pearce  v.  Rickard,  526,  553 

Pearce,  In  re,  142,  489 

Pearl  v.  Lockwood,  678 

Pearn,  Goods  of,  183 

Pearsol  v.  Maxwell,  566 

Pearson  v.  Wartman,  755 

Pearson's    Estate,    229,    487,    691 

Pearson,  Goods  of,   351 

Pease  v.  Allis,  192,  200 

Peck  V.  Carlton,  546 

Peck   V.    Cary,    112,    114,   205,   218, 

385 
Peck's  Appeal,  273,  277 
Peckham  v.  Lego,  488,  575,  576,  696 
Pedrick  v.  Pedrick,  685 
Peebles  v.  Acker,  755,  756 
Peebles  v.  Bunting,  138 
Peebles  v.  Stevens,   401 
Peery  v.  Peery,   127,  133,  410,  423, 

424,   428 
Peet's  Estate,  758 
Pegg  V.  Warford,   329 
Peirce  v.  Hubbard,  572 
Peirce  v.  Peirce,  689 
Peirsol  v.  Poop,  477,  597 
Pell  V.  Mercer,  648 
Pelley  v.   Earles,   55 
Pellew  V.  Horsford,  493 
Pellizzaro  v.  Reppert,  59,  462,  575. 

577,  611,  613.  684,  722 
Pemberton  v.  Barnes,  147 
Pemberton  v.  Pemberton.  728 
Pena  v.  New  Orleans,  229 
Pence  v.  Pence,  704 
Pence  v.  Waugh,  388 
Pendergast  v.  Tibbetts,  269 
Pendergest  v.   Heekin,   138 
Pendlay  v.  Eaton,  382 
Pendleton  v.  Bowler,  491,  574,  618, 

676 
Pendleton  v.  Kinney,  541,  598,  640, 

641.  760 
Pendleton  v.  Larrabee,  269,  467 
Penfield  v.  Tower.  34,   35,   635,  689 
Penhallow  v.  Kimbnll,  719 
Penick  v.  Thorn,  647 


to  sections.) 

Peninsular    Trust    Co.    v.    Barkeir, 

97,   108 
Penney's  Estate,  554 
Penniman,  Goods  of,  254 
Pennington  v.  Pennington,  806 
Pennington    v .  Van     Houten,     462, 

676 
Pennock's  Estate,  574,  611 
Pennoyer  v.  Wadhams,  639,  64.3,  649 
Pennsylvania    Company    for    Insur- 
ance V.  Leggate,   689 
Pen.  Trust  Co.  v.  Barker,  422 
Pennsylvania  Co.'s  Appeal,  658 
Penny  v.  Croul,  441,  641,  644,  646, 

652 
Penstock  v.   Wentwortli,   138 
Pensyl's  Estate,   127,  331,  409,  426 
People,   ex   rel,    Ellert   v.    Cogswell, 

639,  643,  645 
People  v.  Lease,  718 
People  V.  Powers,  22,  610,  619,  043, 

644 
People  V.  Simonson,   626,   640 
People's  Loan  &  Exchange  Bank  v. 

Garlington,   615 
Pepper  v.  Broughton,    199 
Pepper  v.  Thomas,   137 
Pepper  v.  Warrington,  595 
Pepper's   Estate,   28,   314,   315,  640, 

794 
Percy,  In  re,  619 
Perdue  v.  Perdue,  751 
Pero-ason  v.  Etcherson,  385,  386 
Perkins  v.  Fisher,  630,  745 
Perkins  v.  George,  21 
Perkins  v.  Jones,    230 
Perkins  v.  Little,  137 
Perkins  v.  Perkins,   382,   383 
Perkins  v.  Stearns,  554,  573 
Perkins  v.  Windham,  196 
Perkin's  Estate,  361 
Perkins,  In  re,  691 
Perrett    v.    Perrett,    126,    128,    131, 

424,   428 
Perrin  v.  Blake,  564 
Perrine's  Case,  117 
Perry  v.  Bftwman,  570 
Perry  v.  Hunter,  146 


1050 


TABLE  OF  CASES. 


(References  are  to  sections.) 


Perry  v.  Moore,  422,  423 
Perry  v.  Perry,    348 
Perry  v.  Phelips,  143,  14G 
Perry  v.  Sweeny,  312 
Petefish    v.    Becker,    96,    105,    106, 
108,  333,  391,  394,  400 
.Peters  v.  Siders,  287,  288 
Peterson  v.  Beach,  548 
Petit  V.  Flint,  etc.  Ry.  Co.,  691 
Petre  v.  Petre,  774 
Peverly  v.  Peverly,  800 
Pfarr  v.  Belmont,  242 
Pfingst  V.  Dol  finger,  695 
Pflugar  V.  Pultz,  79 
Phalen's  Will,  405 
Phaup  V.  Wooldridge,  283,  284 
Phayer   v.   Kennedy,   457,   461,   659, 

664 
Phelps  V.  Bates,  676 
Phelps  V.  Hartwell,  401,  424 
Phelps   V.   Lord,   043 
Phelps  V.  Bobbins,   162,   166 
Phelps  V.  Simon,  624 
Philadelphia  v.  Girard's  Heirs,  62'! 
Philadelphia    v.    Keystone    Battery. 

653 
Philadelphia  Baptist  Association  v. 

Hart,  643 
Philadelphia     Trust,     etc.     Co.     v. 
Isaac,  512 

Philbrick  v.  Spangler,  230 

Philleo   V.   Holliday,    461 

Phillips  V.  Clark,  758,  760 

Phillips  V.  Ferguson,  528,  081 

Phillips  V.  Moore,    150 

Phillips  V.  Harrow,    642,    643,    644, 
646,   647 

Phillips  V.  Herron,  569,  628,  633 

Phillips  V.  McConica,  743 

Phillips  V.  Phillips,   346 

Phillip's  Estate,  771,  773 

Phillips,  In  re,  205,  224,  226,  228 

Phinizy  v.  Foster,  548 

Phipp   V.    Anglesy,   269 

Phipps  V.  Hope,  70 

Piatt  V.  Sinton,  561,  562,  594 

Pickens  v.  Davis,  273,  27^,  310,  437, 
450,  454 


Pickering  v.  Langdon,  278 

Pickering  v.  Stamford,  736 

Pickett  V.  Leonard,  485 

Pickworth,  In  re,  656 

Picquet  v.  Swan,  90 

Pidcock  V.  Potter,  94,  108,  389,  390 

Pierce  v.  Gardner,   760 

Pierce  v.  Pierce,  112,  233,  240,  410, 

734 
Pierce  v.  Simmons,  562,  695 
Pierce's  Estate,   607 
Piercy,   In  re,   28,   214,   691 
Pierpont  V.  Patrick,  267 
Piersol   v.   Roop,   597,   693 
Piflfard's  Estate,   169 
Pigg   V.   Clarke,   528 
Pike  V.   Stephenson,   549,   638 
Pike's  Will,  418 
Pilcher  v.  Hole,  269 
Pilkin  V.  Peet,  599 
Pilkington  v.  Gray,  374 
Pinckney  v.  Pinckney,  736 
Pingrey  v.   Ins.   Co.   136 
Pinkham  v.  Blair,  467,  547 
Pinkham  v.  Pinkham,  52,  53 
Pinhorne,   In  re,   741 
Pinney  v.  Newton,  463,  466,.  614 
Piper  V.  Moulton,  199,  651 
Pitkin  V.  Peet,  754 
Pitt's  Estate,  98 
Piatt  V.  Mickle,  513,  561 
Piatt  V.  Withington,  688 
Plate's   Estate,    173 
Pleasant's   Appeal,  278,  669 
Pleasanton's  Estate,  72 
Plume  V.   Howard   Savings  Institu- 
tion,  341 
Pocock  V.  Redinger,  487,  819 
Pollock  V.  Farnham,  744 
Pollock  V.  Glassell,   217 
Pollock  V.  Speidel,  564,  569 
Pomeroy  v.  Benton,  434 
Pond  V.  Sheean,  75 
Pool  V.  Buffum,  173,  178,  179 
Poole  V.  Anderson,  693 
Poole  V.  Poole,   576 
Poole  V.  Richardson,   393 


TABLE  OF  CASES. 


1051 


(References  are 

Pooler   V.   Cristman,   130,   132,   385, 

386,  397,  426,  428 
Poor  V.  Considine,  656,  659,  663 
Poor  V.  Robinson,  144 
Poore  V.  Poore,  53,  190 
Pope  V.  Elliott,  085 
Pope  V.  Pope,  307,   308 
Pope  V.  Sullivan,  691 
Porschett  v.  Porsghett,  411 
Porter  v.  Dunn,  78 
Porter  v.  Ford,    226 
Porter  v.  Gaines,    485 
Porter  v.  Howe,  771,  772,  773.   708 
Porter  v.  Jackson,   754 
Porter  v.  Throop,  428 
Porter  v.  Tourney,  492 
Porter's  Appeal,  236,  788 
Porter's  Estate,   216,   227 
Porter,  Goods  of,   62 
Porter,  In  re,  684 
Porter's  Will,  205,  227 
Porterfield   v.    Porterfield,    692,    mZ 

Portland,  Countess  of,  v.  Prodgers, 
89 

Portland  Trust  Company  v.  Beatie, 
485 

Portuondo's  Estate,  737 

Posegate  v.   South,   598 

Post  V.  Jackson,   556 

Post  V.  Mason,  405,  414 

Post  V.  Rohrbach,  583 

Potter  V.  Brown,  288,  293,  774 

Potter  V.  Couch,  562,  618,  630,  631, 
684,  745 

Potter  V.  Jones,   104,   106,  108,  312 

Potter  V.  Ranlitt,  689 

Potter  V.  Titcomb,  28 

Potter's  Will,  256,  388,  400,  424 

Potts  V.  Breneman,  692 

Potts  V.  Felton,  221,  223 

Potts  V.   House,   47,    103,   109,    117, 
125,   389,   390 

Potts  V.  Jones,  106 

Potts  V.  Kline,  574 

Powell  V.  Demming,  806 
Powell  V.  Hatch,  643 
Powell  V.  Koehler,  321,  342 
Powell  V.  Powell,  21,  259.  276,  278 


to  sections.) 

Powell  V.  Roake,  698 

Powell's  Estate,  799 

Powell,  Goods  of,  187 

Powell,  In  re,  629,  631 

Power  V.  Hafley,  73 

Power  V.  Jenkins,   755 

Power,  In  re,  764 

Powers  V.  Bullwinkle,   662 

Powers  V.  Codwise,  746 

Powers  V.  EgelhoflF,  669,  739 

Powers'  Ex'r  v.  Powers,  333,  386 

Pratt  V.  Doughlass,  28,  575 

Pratt  V.  Hargreaves,   313,   329,   368 

Pratt  V.  Pratt,   138 

Pratt  V.  Shepard,  etc.  Hospital,  574, 

611 
Pratt  V.  Taliaferro,  702 
Pratt,   In  re,   769 
Prather  v.  McClelland,  96,  97,   315. 

323,  385,  400 
Pratte  v.  Coffman,  400 
Prendergast  v.  Walsh,  768 
Prentis  v.  Bates,  110,  382,  389,  390, 

395,  405 
Prentiss  v.  Prentiss,  287 
Presbyterian  Church  v.  Venable,  147 

Preseott  v.   Prescott,   744 

Pres.  Board  of  Foreign  Missions  v. 
Culp,  573 

President,   etc.   of   Bowdoin   College 
V.  Merritt,  42,  49,  52 

Preston  v.  Fidelity,  etc.  Co.,  323 

Preston  v.  Trust  Co.  343 

Price  V.  Cole,  463 

Price  V.  Douglass,  789 

Price  V.  Hutchins,  476 

Price  V.  Jones,  54 

Price  V.  Maxwell,  267,  269,  277 

Price  V.  Powell,  249,  252 

Price  V.  Price,  248,  750 

Price,   In   re,  93 

Pride  v.  Bubb,  91 

Prideaux  v.  Gibbon,  143 

Priest  V.  Lackey.  485,  487,  819 

Prigden  v.  Prigden,  219 

Primmer  v.  Primmer,  101 

Prince  v.  Hazelton,  2.32,  2.34,  244 


1052 


TABLE  OF  CASES. 


Pringle  v.  McPherson,  251,  254,  260, 

273,  276 
Prior  V.  Pendleton,  326 
Pritehard  v.  Pritchard,    496 
Pritchard  v.  Walker,  461,  462 
Pritchard's  Will,  237 
Pritchitt  V.  Trust  Co.,  602 
Probate  Judge  v.  Page,  802 
Proctor  V.   Clark,   31,   34,   546 
Proctor's  Estate,  576,  712,   721 
Proctor,  In  re,  576 
Prosser  v.   Hardesty,  462,  470,   676 
Protestant  Episcopal  Education  So- 
ciety V.  Churchman,  643 
Protestant    Orphan   Asylum   v.    Su- 
perior Court,   324 

Prowitt   V.    Rodman,    524 

Pruden    v.    Pruden,    142,    489,    59G, 
817 

Pruitt  V.  Holland,  676 

Pryer  v.  Mark,  750,  752 

Pryor  v.  Coggin,  247,  255 

Pryor   v.   Pendleton,   723 

Pryor  v.  Pryor,  219 

Puddephatt,   Goods   of,    183 

Pugh  V.  Pugh,  522 

Purdy's  ^Vill,  375 

Purnell  v.  Reed,  137,  138 

Purviance  v.  Purviance,  72,  81 

Purvianee  v.   Shultz,  78 

Pusey  V.  Wathen,  793 

Putnam  v.  Gleason,  656 

Putnam  v.  Pitney,  356 

Putnam  v.  Story,  656,  662 

Putt  V.  Putt,  333,  344 

Putters  V.  Dawson,  150 

Pye,  Ex  parte,  783 

Pyle  V.  Pyle,  400 

Pyle,  In  re,  482 
Pym  V.  Lockyer,  783 


Q 

Quackenbush  v.  Ehle,  74 
Quick  V.  Quick,  441 
Quigley  v.  Birdseye,  150 


(References  are  to  sections.) 

Quincy    v.    Attorney    General,    154, 

462,  465,  686 
Quisenberry  v.  Watkins  Land  Mort- 
gage Company,  691 


R 


Raeonillat  v.  Sansevain,  150 

Radcliflfe  v.  Buckley,  524 

Radl  V.  Radl,  138 

Raine,  Goods,  of,  249 

Raine,  In  re,  66,  68 

Raines  v.  Barker,  142 

Raleigh,    etc.    Ry.    Co.    v.    Glendon, 

371 
Ralph  V.   Carrick,  468 
Ralph  V.  Watson,  4G8 
Ralston  v.  Truesdell,  566 
Rambler  v.  Tryon,  400 
Ramsdell   v.   Ramsdell,   684 
Ramsdill    v.    Wentworth,    291,    293, 

294 
Ramsey  v.  Ramsey,  230 
Ramsey  v.  Stephenson,  557 
Rand  v.  Butler,   466 
Rand  v.  Hubbell,   602 
Rand's  Estate,  230 
Randall  v.  Beatty,  273 

Randall  v.  Randall,    59,    611,    613, 
737 

Randall  v.  Willis,  79 

Randolph  v.  Hughes,   337 

Randolph  v.  Lampkin,    131 

Randolph  v.  Randolph,    802 

Rankin  v.  Rankin,  389,  410 

Ransdell   v.   Boston.   675,   681 

Ransome  v.  Connelly,  281 

Rapp  V.  Reehling,  820 

Rasberry  v.  Harville,  624 

Rathbone  v.  Hamilton.  93,  692 

Ratliff  V.   Warner,   598 

Raudebaugh    v.     Shelly,    203.    205, 
216,   218,   330 

Ravenscroft  v.  Hunter,  433 

Rawlin's  Trust,-  468 

Rawlings  v.  Jennings,  478 


TABLE  OF  CASES. 


1053 


(References  are  to  sections.) 

Rawlings   v.   McRoberts,    52 

Kawling's  Estate,  737 

Rawlings,  Goods  of,  268 

Eawson  v.  Rawson,  512 

Hay  V.  Hill,   117,  173,  214 

Ray  V.  Ray,  423 

Ray  V.  Stauliope,  785 

Ray.v.  Walton,  266 

Raynolds  v.  Hanna,  685 

Rea  V.  Bell,  631 

Read  v.  Fogg,  656 

Read  v.  Manning,  269 

Read   V.   Williams,   643,   707,  808 

Readman  v.  Ferguson,  28,  755,  808 

Reagan  v.   Stanley,   57,  58 

Reams   v.   Span.   662 

Rebman  v.  Bierdorf,  671 

Rebman  v.   Dierdorf,   666 

Record  v.  Fields,   557,  558 

Redding  v.  Rice,  503,  681 

Redding,  In  re,   172 

Eedfield  V.  Redfield,  269,  758 

Redfield's  Estate,   104,   108,   329 

Redford  v.  Redford,  481 

Redman  v,  Barger,  581 

Redmond  v.   Burroughs,   521 

Redmond    v.    Collins,    317 

Reed  v.  Blaisdell,  89 

Reed  v.  Buckley,  669 

Reed  v.  Corrigan,  776 

Reed  v.  Davis,   622 

Reed  v.  Hazelton,   49,  55 

Reed  v.  Roberts,  210,  211 

Reed  V.  Talley,    138 

Reed  V.  Watson,  189,  203,  222 

Reed  v.  Woodward,  159 

Reed's  Will,   102 

Reen  v.  Wagner,  515 

Rees  V.  Rees,  161 

Rees,  In  re,  739 

Reese  v.  Cochran,  93 

Reese  v.  Hawthorne,  234,  23r> 

Reese  v.  Nolan,   319,   320,   325,   335 

Reese  v.  Portsmouth  Probata  Court, 

264,  277 
Reeves  v.  Brymer,   524 
Reeves  v.  Reeves,    643 


Reformed,    etc.    Church    v.    Nelson, 

324 
Regers'  Estate,  676 
Reichard's  Appeal,  269 
Reichenbach    v.    Ruddach,    85,    98, 
112,   126,  130,  394,  395,  411,  412 
Reid  V.  Borland,  264,  273,  277 
Reid  V.  Corrigan,  755 
Reid  V.  Hancock,  473 
Reid  V.  Walbach,  474,  482,  502,  665 
Reid  V.  Vanderheyden,  325 
Reid,  Goods  of,  311 
Reilly  V.   Union   Protestant  Infirm- 
ary, 461,  538,  539 
Reimensnyder  v.  Gans,  25 
Reimer's  Estate,  478 
Reinhardt's  Estate,  467 
Remington  v.  Bank,  22,  45,  56,  171 
Renaud  v.   Pageot,  424 
Reno  v.  Davis,  461 
Renton's  Estate,  325,  743 
Renz  V.  Drury,  81 
Reville  v.  Dubach,  732 
Rex  V.  Bettefworth,  89 
Reynolds  v.  Adams,  400 
Reynolds  v.  Reynolds,  117,  210,  214 
Reynolds  v.  Robinson,  796 
Reynolds  v.  Shirley,  309 
Reynold's  Estate,  570,  598 
Reynolds,  In  re,  478,  492,  494 
Rhode  Island  Hospital  Trust  Com- 
pany V.  Harris,  555,  600,  704 
R.  I.  Hospital  Co.  v.  Peckham,  5.50 
Rhode  Island,  etc.  Trust  Co.  v.  Com- 
mercial National  Bank,  576 
Rhodes  V.  Rhodes,  75,   79,  614,   643 
Rhodes  v.  Vinson,   257 
Rhodes  v.Weldy,  287,  288,  289,  292. 

293 
Rhodes's    Estate,    269,    626 
Rhorer  v.  Stehman,  170 
Rhoton  V.  Blevin,    291,    292,    293 
Rhyne  v.   Torrence,   576 
Rice  v.  Hosking,  339 
Rice  v.  Moyer,   570,  574 
Rice  V.  Rice,  108,  115,  402 


1054 


TABLE  OF  CASES. 


(References  are  to  sections.) 


Rice  V.  Tavernier,  691 
Rice's  Estate,  331,  374 
Rice,  Goods  of,  185 
Rich  V.  Cockell,  92 
Rich  V.  Gilkey,  257 
Richards  v.  Mollis,  734 
Richards  v.  Humphreys,  308 
Richards  v.  Richards,  678,  712,  725 
Richardson  v.  Bowen,  771 
Richardson  v.  Green,  315,  320,  323, 

340 
Richardson  v.  Hall,    492,    771,    773. 

776 
Richardson  v.  Martin,  513 
Richardson   v.   Penicks,   662 
Richardson  v.  Richardson,  362,  807 
Richardson  v.  Wheatland,  656 
Richardson  v.  Willis,  269,  462,  545 
Richardson's  Estate,  58 
Richardson,  In  re,  46,   48 
Richerson,  In  re,  700,  707,  708 
Richey  v.  Johnson,  556,  656 
Richmond's   Appeal,   410,   411,    413, 

414 
Richter  v.  Bohnsack,  22,  23,  138 
Rickards   v.   Gray,   676 
Rickner  v.  Kessler,  562 
Ridenbaugh   v.   Young,    346 
Ridgeway  v.  Lanphear,  520,  561 
Ridley  v.   Ridley,   74 
Ridley  v.  Coleman,  236 
Riegelman,   In  re,   765 
Rigg  V.  Wilton,   330,  366 
Riggan  v.  Lamkin,  663 
Riggs  V.  Cragg,  812 
Riggs  V.  Myers,  487,  819 
Riggs  V.  Palmer,  687 
Riggs  V.  Riggs,  213,  214 
Right  V.  Price,  209 
Riker  v.  Cornwell,  507 
Riley  v.  Allen,  72,  76,  79 
Riley  v.  Riley,  174.  177,  178,  220 
Riley  v.  Sherwood,  96,  102,  125,  127, 
128,  130,   131,   133,  334,   399,  405 
Ringquist  v.  Young,  548 
Risse  V.  Gasch,  377,  379 
Ritchie  v.  Ritchie,  697 
Ritter's  Appeal,  52 


Ritter's  Estate,  597,  668 

Rivard    v.    Rivard,    108,    128,    131, 

333,   385,  428 
Rivers   v.   Rivers,   70,   73,  462,   741, 

751 
Rixey   v.   Deitrick,   624 
Rixey  v.   Stuckey,  543 
Rixner's  Succession,  151 
Roane  v.   Hollingshead,  284 
Robb  v.   Robb,  480 
Bobbins   v.    Bobbins,    209,   226,   228 
Robbins  v.  Swain,  783 
Robeno  v.  Marlatt,  340 
Roberts  v.  Abbott,   327 
Roberts  v.  Coleman,  49 
Roberts  v.  Cooke,  507 
Roberts  v.  Hall,  72,  75 
Roberts  v.  Lewis,    576 
Roberts  v.  Phillips,    223 
Roberts  v.  Roberts,  571 
Roberts  v.  Round,   254 
Roberts  v.  Ruffin,    499 
Roberts  v.  Stevens,   684,   685 
Roberts  v.  Trawick,  400 
Roberts    v.    Welch,    203,    216,    227, 

370 
Robert's  Estate,  749 
Robertson  v.  Barbour,  28 
Robertson  v.  Hardy,    570.    580,  595 
Robertson  v.  Johnson,  471 
Robertson  v.  Junkin,  754 
Robertson  v.   Pickrell,  312,  313,  315 
Robertson  v.  Robertson.    576 
Robertson's  Succession.  220,  2.30 
Robeson  v.  Shotwell,  462,  575.  576 
Robins  v.  Coryell,   174,  204 
Robins    v.    Quinliven,    526 
Robinson  v.  Adams,    104,    107,    111. 

388,  393 
Robinson  v.  Allison,  692 
Robinson  v.  Brewster,  53,  173,  223, 

366,   373 
Robinson   v.    Finch,    562.    597 
Robinson  v.  Greene,    802 
Robinson  v.  Hutchinson.   423 
Robinson  v.  Ingram,  52 
Robinson  v.  King,   210 


TABLE  OF  CASES. 


1055 


(References  are 

Robinson    v.    Ostendorflf,    560,    615, 

084 
Robinson  v.  Palmer,  466 
Robinson  v.  Randolph,   560 
Robinson  v.  Robinson,  115,  572 
Robinson  v.  Stuart,   127 
Robinson  v.  Sykes,  526 
Robinson  v.  Waddelow,  528 
Robinson's  Estate,  331,  568 
Robinson,   In   re,   649 
Robnett  v.   Ashlock,   61,   62 
Robson,  In  re,  494 
Rochester,  City  of,  In  re,  764 
Rocke  V.  Roeke,  802 
Rock    Island    &    Peoria    Ry.    Co.    v. 

Dimick,   73 
Rockwell   V.   Bradshaw,   543,   807 
Rockwell  V.  Swift,    147,    488,     507, 

587,  680 
Rockwell's  Appeal,  405 
Rodenfels  v.  Schuman,  575 
Roderigas     v.     East     End     Savings 

■  Institution,   341 
Rodgers  v.  Rodgers,  209 
Rodney  v.  Landeau,  572 
Roe  V.  Nix,  115 
Roe  V.  Sheffield,   548 
Roe  V.  Vingut,   462,   463,   465,   473, 

491 
Roelke  v.   Roelke,   313 
Rogers  v.  Bayley,  482 
Rogers  v.  Diamond,   209,   216 
Rogers  v.  Maguire,  788 
Rogers  v.  Rogers,  424,  462,   470 
Rogers  v.  Strobach,  542 
Rogers  v.  Winklepleck,    574 
Rogers,  Appellant,  65 
Roger's  Estate,  325,  638 
Rogge's  Succession,  28 
Rohe's  Will,  In  re,  111. 
Rohn  V.  Odenwelder,  760 
Rohrer  v.  Stehman.  188 
Roller   V.   Kling,   97,   98,    382,    .?84, 

401 
Rollwagen   v.   Rollwagen,     47,     12G, 

430 
Romaine  v.  Hendickson,  660 


to  sections.) 

Rood  V.  Hovey,  669 

Rook  V.  Wilson,  173,  179,  487 

Roome  v.  Phillips,   659 

Roosevelt  v.  Thurnian,  684 

Root's  Estate,   531,   538,   820 

Root's  Will,  756 

Rootes,  In  re,  515 

Rosborough   v.    Hemphill,    466,   820 

Rosborough  v.  Mills,  807 

Rose  V.  Allen,  219 

Rose  V.  Eaton,  573 

Rose  V.  Hale,  472,  571 

Rose  V.  Hatch,  610,  696 

Rose  V.  Quick,  57 

Rosenau  v.   Childers,   570,  572,   582 

Rosenbaum  v.  Garrett,  31,  35 

Rosenburg  v.  Frank,  509 

Rosher,  In  re,   684 

Ross  V.   Ewer,   91 

Ross  V.  Kiger,  473,  819 

Ross  V.  McQuiston,  394 

Ross  V.  Ross,  31,  142,  526,  529,  561, 

562,  645,  647 
Ross,  Ex'r,  V,  Kiger,  558 
Rosser  v.  Franklin,  173,  204,  222.. 
Rossetter  v.  Simmons,  188 
Rotch   v.    Emerson,    619 
Rotch  V.  Loring,   507 
Rotch  V.  Rotch,  547 
Rote  V.  Stratton,  315 
Rote  V.  Warner,  614,  774 
Roth  V.  Michalis,   53 
Roth's   Succession,   230 
Rothrock  v.  Rothrock,  101,  116,  312 
Rothwell  V.  .Jamison,   335 
Roulette  v.  ISIulherin,  323 
Roundtree  v.  Dickson,  697 
Roundtree   v.    Roundtree,    546,   550, 

551,    613 
Roush  V.   Wensel,   159,   390,   401 
Rowe  V.   White,   598 
Rowe,   In   re,  498 
Rowland  v.  Evans,   312 
Rowland's  Estate,  556,  668 
Rowley  v.  Sanns,  576,  583,  732 
Rowman  v.  Oram,  684 
Rowson's  Estate,  331 


1056 


TABLE  OF  CASES. 


( References  are   to  sections.) 


-Roy  V.  Monroe,  507,  700,  706,  707, 

444 
Roy  V.  Rowe,  560,  561 
Roy  V.  Roy,   230 
Royer's    Estate,    25,    154,   645 
Royle  V.  Harris,   187 
Rozell  V.  Thomas,  597 
R.   R.    V.   Wasserman,   282,   292 
Rubbins,  In  re,  579 
Ruch  V.  Rock  Island,  147 
Rucker  v.  Lambdin,  199,  210 
Ruckle  V.   Grafflin,   142,   478,   489 
Rudisill  V.  Rodes,  274 
Rudy     V.     Ulrich,    132,    264,    277, 

411 
Rudy's   Estate,   578,  579 
Ruffin  V.   Ruffin,   492 
Ruffino's     Estate,     105,     120,     411, 

427 
Rugely  V.  Robinson,  528 
Rugg  V.  Rugg,  223,  362 
Ruggles  V.   Randall,   512,   515,   545, 

547,  551,  561 
Rumph  V.  Hiatt,  314 
Rumsey  v.   Otis,  773 
Runyan    v.    Price,    330,    392,    393, 

405 
Rupp  V.  Eberly,  547 
Rush  County  Commissioners  v.  Din- 

widdie,  506,  641,  644,  648 
Rusk  V.  Zuck,  474,  576 
Rusling  V.  Rusling,  414 
Russell   V.  Agar,   73,   79 
Russell  V.  Allen,  626,  640,  641,  643 
Russell  V.  Jackson,  388 
Russell,  Goods  of,  281 
Russell,  In  re,  629 
Ruth  V.  Oberbrunner,  655 
Rutherford  v.  Mayo,  137 
Rutherford  v.  Morris,  389,  400,  405, 

426 
Ryan  v.  Egan,   151 
Ryan  v.  Mahan,   697 
Ryan  v.  Martin,  823 
Ryerson,  In  re,  598 
Rymer,   In  re,   645 
Rymes   v.    Clarkson,    159 


Sadler  v.   Sadler,   234,  240 

Sager  v.  Galloway,  656 

Saint  V.  Charity  Hospital,  243 

St.  George's,  etc.  Society  v.  Branch, 
649 

St.  John  V.  Dann,  566,  569,  578, 
594,   631,   664,   685 

St.  John's  Parish  v.  Bostwiek,  49 

St.  Joseph's  Convent  of  Mercy  v. 
Garner,    94,    100,    357 

St.  Leger's  Appeal,  97,  126,  318, 
320,    333,    413 

St.  Louis  Hospital  v.  Wegman,  173, 
179 

St.  Louis  Hospital  v.  Williams,  158, 
173,   179 

St.  Margaret's  Hospital  v.  Pa.  Com- 
pany,  484 

St.  Paul's  Church  v.  Attorney  Gen- 
eral, 646 

Sale  V.   Moore,  Oil 

Salmon's  Estate,  820 

Salt,  In  re,  764 

Salter  v.  Ely,  10.5,  120,  124,  120, 
128,   405,   404 

Sampson  v.  Browning,  237 

Sampson  v.  Randall,  491 

Samson  v.  Samson,    342 

Sanborn    v.    Batchelder,    93 

Sanborn  v.  Sanborn,  565 

Sanborn's    Estate,    325 

Sanders  v.  Babbitt,    248 

Sanders  v.  Blakeley,   390 

Sanders  v.   Simcich,  283 

Sanders  v.  Wallace,  713,  729 

Sanders,  In  re,  522 

Sanderson  v.  Bayley,  532 

Sanderson  v.  Bigham,    487,    588 

Sanderson  v.  Sanderson,  323,  382 

Sanderson's  Estate,  341 

Sanford  v.  Lackland,  802 

Sarce  v.  Dunoyer,  269 

Satterfield  v.  Mayes,  540 

Sauer  v.  Mollinger,  754,  820 

Saunder's   Appeal,   424 

Saunders  v.  Stiles,  47 


TABLE  OF  CAiSEcJ. 


1057 


(References  are  to  sections.) 


Saux's  Succession,  241 

Savage  v.  Robertson,  156 

Saville  v.  Saville,  785 

Savory,  In  re,   172 

Sawtelle  v.  Ripley,  809 

Sawtelle     v.     Witliam,      619,     643, 

647 
Sawyer  v.  Baldwin,  461 
Sawyer  v.  Cubby,    637 
Sawyer  v.  Freeman,   738,   744 
Saxton  V.  Webber,  466,  543,  637 
Scaife   v.   Emmons,    234 
Scale  V.  Rawlins,  468 
Scanlan  v.  Wright,  150 
Scarisbrick   v.    Skelmersdale,    638 
Scattergood  v.  Kirk,   190,  414 
Schad's  Appeal,  56 
Schardt  v.  Schardt,  136 
Scharpf  v.   Schmidt,   151 
Schehr  v.  Look,  605 
Schermerhorn   v.   Getting,    631,   637 
Schermerhorn  v.  Merritt,   181 
Schildnecht  v.  Rompf,  111 
Schinz  v.  Schinz,  615,  806 
Schley  v.  Collis,  726 
Schley  v.  McCeney,  91 
Schlottman   v.    Hoflfman,    321,    809, 

819 
Schmaunz  v.  Goss,  527,  594 
Schmidt  v.  Schmidt,  97 
Schmidt's  Estate,  25,  814 
Schnee  v.  Schnee,  220,  367,  441 
Schneider  v.  Koester,  291 
Schneider  v.  Manning,    392 
Schofield  V.  Walker,  441 
Scholl's   Will,    156 
Schorr  v.  Carter,  572 
Schorr  v.   Etling,   716 
Schouler,  In  re,  650 
Schreiner  v.  Schreiner,  94 
Schroeder  v.  Wilcox,  689,  692 
Sdmbart's    Estate,    605 
Schulenberg   v.    Harriman,    147 
Schult  V.  Moll,  562 
Schultze  V.  Schultze,  151,  317,  324 

434 
Schultz's  Estate,  737 


Schumaker  v.  Schmidt,  66,  67,  08,  69 

Schwartz  v.  Gehring,  605 

Schwartz's  Estate,  559 

Schwa  then   v.   Daudt,   735 

Schweder's  Estate,  773 

Scofield    V.    Olcoit,    466,    658,    668, 

669 
Scott  V.  Best,    663 
Scott  V.  Fink,  273 
Scott  V.  Guernsey,  524 
Scott  V.  Harkness,  93 
Scott  V.  Harris,  388 
Scott  V.  Hawk,    173,   227,   373,   376 
Scott  V.  Ives,   153 
Scott  V.  Key,  603 
Scott  V.  McKee,  388 
Scott  V.  McNeal,   341 
Scott  V.  Neeves,   501 
Scott  V.   Price,   473 
Scott  V.   Scott,   276 
Scott  V.  Ward,  139 
Scott  V.  West,    658 
Scott's    Estate,    35,    58,    105,    324, 

376,   382,   554,   557 
Scowcrost,  In  re,  646 
Scribner  v.  Crane,  208 
Scull  v.  Beatty,  138 
Seal,   In  re,   488 
Scale  V.  Chambliss,  400 
Seale-HajTie  v.  Jodrell,  529 
Seals  v.  Pierce,  53,  57 
Seaman  v.  Woods,   278 
Seaman,  In  re,  314,  661 
Seamonds  v.  Hodge,  613 
Sears  v.  Chapman,  644,  645 
Sears  v.  Choate,  685 
Sears  v.  Dillingham,  191,  199 
Sears  v.  Hardy,   617,  799 
Sears  v.  Russell,    547 
Sear's   Estate,   803 
Seawright's   Estate,   802 
Sechrest  v.  Edwards,  222 
Security  Co.  v.  Bryant,  776 
Security  Company     v.     Cone,     599, 

619 
Security    Co.    v.    Pratt,     598.     695, 

806,   807 
Security  Co.  v.  Snow,  277,  619,  633 


1058 


TABLE  OF  CASES. 


(References  are  to  sections.) 


Seebeck,   In  re,   657 

Seebrock  v.  Fedawa,  370,   382,  405, 

487 
Seeds   v.    Burke,    691 
Seeger  v.  Leakin,  564,  689 
Seeley  v.  Huicks,  678 
Seery  v.  Murray,  313,  318 
Seever  v.  Seever,  237,  240 
Segare  v.  Ash,  270 
Segur's  Will,  96,  108 
Sehr  V.  Lindemann,  102,  117,  132 
Seitz  V.  Pier,  562 
Seitzinger's  Estate,   613,   685 
Selby  V.  Selby,  765 
Sellers  v.  Reed,  469,  664 
Selman  v.  Robertson,  546,  578,  591, 

631 
Semmes   v.    Semmes,   259,   275,   450 
Semmig   v.   Mirrihew,   584 
Scrapie's  Estate,   752 
Senger  v.  Senger,  820 
Serfass  v.   Serfass,  564 
Serle  v.  St.  Eloy,  765 
Seton  V.  Slade,  143 
Severance  v.  Severance,  407,  409 
Sevier  v.   Douglass,  28,   545 
Sevier  v.  Douglas,  545 
Sewall   V.    Robbins,   276 
Sewall  V.  Wilmer,  39 
Sewell  V.  Slingluff,  47,  244 
Seymour   v.   Van   Wyck,   227 
SejTTiour's  Estate,   423,   429 
Seymour's    Succession,    264,    265 
Shacklett  v.  Roller,  449,  450 
Shackleton  v.  Sebree,  52 
Shadden  v.  Hembree,  461,  579,  738, 

739 
Shaefer  v.  Dawson,  550 
Shafer  v.  Smith,  210 
Shaffer  v.   Shaffer,  734 
Shaffer's    Succession,    48,   269,    337, 

768,  771,  781 
Shahan  v.  Swan,  74,  75 
Shailer  v.   Bumstead,  85,   126,   394, 

401,  423,  424 
Shakespeare  v.  Markham,  79 
Shaler  v.  Bumstead,  428 
Shank  v.  Mills,  546 


Shanley's   Appeal,    390 

Shannon  v.  Pickell,  522 

Shapleigh   v.    Shapleigh,    480 

Sharboro's  Estate,  321 

Sharland,   In  re,  534 

Sharp  V.  Hall,  52,  53 

Sharp  V.  Humphreys,  575 

Sharp  V.  McPherson,   780 

Sharp  V.  Wallace,    307 

Sharp  V.  Wallis,  269 

Sharp's  Appeal,   98,   102 

Sharpe  v.  Soupe,   139 

Sharkey   v.   McDermott,   72,   75,   79 

Sharpless's  Estate,   016 

Shattuck   V.   Balcom.   554,   606,   618 

Shattuck  V.  Stedman,   549 

Shaver  v.   McCarthy,   390 

Shaw  V.  Camp,    307,    311,    323,    344 

Shaw  V.  Eckley,  545,  547,  622,  656, 

657,  658,  662,  664 
Shaw  V.  Erwin,  676 
Shaw  V.  Moderwell,   344 
Shaw  V.  Neville,   222 
Shaw  V.  Shaw,  244 
Shaw  V.  Schoonover,  73 
Shaw's   Estate,    534 
Shearer  v.  Miller.  593,  594 
Shee  v.  Hale,   685 
Sheehan  v.  Kearney,  173,   180,  330, 

382,  400,  405,  406,  423 
Sheeley    v.    Neidhammer,    564,    566, 

568 
Sheer  v.  Sheer.  380,  744 
Sheets  v.  Hardin,  643 
Sheets  v.  Wetsel,  461 
Sheet's   Estate,   574 
Sheffield  v.  Parker,  499,  604 
Sheldon  v.  Sheldon,  166 
Sheldon     v.     Stockbridge,    154,   643, 

644,   647,   651.   740 
Shelley's  Case,  564 
Shelton  v.   Homer,   692 
Shenk  v.  Shenk,  753 
Shepard's    Estate,    325 
Sheridan  v.  Sheridan.  702 
Sherley  v.  Sherley.  105 
Sherman    v.    Baker,    507,    575,    651, 

668,  737,  776 


TABLE  OF  CASES. 


1059 


(References  are 

Sherman  v.  Kitsmiller,  79 

Sherman  v.  Lewis,  717 

Sherman  v.  New    Bedford    Savings 

Bank,  56 
Sherrer  v.  Brown,  281 
Sherwood  v.  Sherwood,  810 
Shibla   V.   Ely,   576 
Shillaber,  In  re,  162,   165,  229 
Shinier  v.   Shimer,  600,  670 
Shinkle   v.   McCrock,   21 
Shipman   v.   Furness,    122,    125 
Shipman  v.  Keyes,   734 
Shipman  v.  Rollins,    739 
Shmid's   Estate,   576 
Shorb  V.  Brubaker,  105 
Shore  v.  Shore,  098 
Short  V.  Etling,  138 
Short  V.  Smith,  254 
Shorten  v.  Judd,  283,  284 
Showalter  v.  Showalter,  773 
Shower's   Cases,   270 
Shreiner  v.  Shreiner,  98 
Shreiner's  Appeal,  97,  108,  462,  403, 

470 
Shrimpton  v.  Shrimpton,  059 
Shudall  V.  JeykI,  783 
Shumate  v.  Bailey,  476,  488,  500 
Shute  V.  Sargent,  32,  33 
Shutz's  Appeal,  470 
Sibley  v.  Perry,   520 
Sickles  V.  New  Orleans,  31,  35,  643 

Siders  v.  Siders,  555 

Siddall  V.  Harrison,  800 

Siddall's  Estate,  031 

Siddons  v.  Cockrell,  571 

Siedler  v.  Syms,  636 

Siegwald  v.   Siegwald,  574 

Silcox  V.  Nelson,  508 

Sill  V.  Blaney,  702 

Sillcocks  V.  Sillcocks,  570 

Silliman  v.  Whitaker,  567,  568 

Silva  V.  Hopkinson,  564 

Silvany's  Estate,  414 

Silverthorn's  Will,  102,  385 

Sim  V.  Russell,  96,  385,  393 

Simerly  v.  Hurley,  410 

Simmons  v.  AUinson,  823 


to  sections.) 

Simmons  v.  Beazel,  477 

Simmons  v.  l^eonard,  190,  202,  203, 

207,   210,   220,   222 
Simmons  v.  Spratt,  506 
Simmons,   In   re,   210 
Simms  v.  Buist,  504,  614 
Simon  v.  Wildt,  44,  52,  55 
Simonds  v.  Simonds,  562,  566 
Simpson  v.  Cherry,   158,  540,  579 
Simpson  v.  Molson's  Bank,  014 
Simpson  v.  Simpson,  178 
Simpson  v.  Walker,  278 
Simrell's  Estate,  254,  298,  299 
Sims   V.    Sims,    108,   401,    015,   017, 

020,   812 
Sinclair's  Will,  348 
Singer's    Will,    221 
Singleton  v.  Tomlinson,  103 
Sinnett  v.  Bowman,  90,   329,  335 
Sinnott  v.  Kennedy,  708,  709 
Sinton   v.   Boyd,   548 
Sires   v.   Sires,   576 
Sise  V.   Willard,   576 
Sisson  V.  Seabury,  459 
Sister  v.  Smith,  47 
Sisters    of    Charity    v.    Kelly,    164, 
222,   186 

Sites  V.  Eldredge,  475 

Sittig  V.  Hance,  781 

Skair,  In  re,  163 

Skeggs  V.  Horton,  434 

Skerrett  v.  Burd,  278 

Skerrett's  Estate,   57,  58,   162,   166, 
167 

Skinner  v.  American  Bible  Society,. 
102,  189,  203,  227,  307,  311 

Skinner  v.  Blackburn,  240- 

Skinner  v.  McDowell,  570 

Skipwith  V.  Cabell,  270,  277,  508     ■ 

Skrymser  v.  Northcote,  507  . 

Slack  V.  Bird,  540 

Slack  V.  Emery,  704,  705 

Slach   V.   Perrine,    314 

Slater   v.   Dangerfield,   566 

Slattery  v,   Wason,   685 

Slaughter  v.  Slaughter,  244 


1060 


TABLE  OF  CASES. 


(References  are  to  sections.) 


Slaughter  v.  Stephens,  279 

Slaughter  v.  Stevens,  450 

Slayton  v.  Blount,  568 

Sleeper  v.  Kelley,  794 

Slinn,  Goods   of,   53 

Slingloff   V.   Bruner,   112,    192,   194, 

197,  330,  367,  369,  372,  373,  387, 

400 
Slinger's  Will,   115,  426,  427 
Slingluff  V.  Johns,  473 
Sloan  V.  Sloan,   189,   190 
Sloan's   Estate,    198 
Slocum  V.  Hagaman,  737 
Sloniger  v.   Sloniger,  70,  73,  281,  454 
Sly  V.  Hunt,  340,  341 
Small  V.  Field,  613,  624 
Small    V.   Jose,    136,   500 
Small  V.   Marburg,   662,  676,  737 
Small  V.   Small,  410 
Small  V.  Thompson,  576 
Smalley  v    Smalley,   191,   194,   689, 

810 
Smart  v.  Prujean,  166 
Smathers  v.  Moody,  561,  573 
Smee    v.    Bryer,    185 
Smee    v.    Smee,    94 
Smelie  v.   Reynolds,  89 
Smiley   v.    Gambill,    247,    255,    258, 

449,    450 
Smith   V.    Beardsley,   695 
Smith    V.    Bell,    576,    597,    817 
Smith  V.  Berry,  562 
Smith  V.   Bonsall,  312 
Smith  V.   Bradstreet,   325 
Smith  V.  Burch,  496 
Smith  V.  Butler,   722,   715 
Smith   V.   Cairns,   749 
Smith  V.  Chadwick,  579,  674 
Smith  V.  Clemson,  284 
Smith  V.  Combs,  341 
Smith  V.  Curtis,  744 
Smith  V.  Day,  382,  394 
Smith  V.   Dennis,   488 
Smith  V.  Donnell,  461 
Smith  V.  DuBrose,  156 
Smith  V.  Edrington,   141 
Smith   V.   Evans,    170 
Smith  V.   Fenner,   302 


Smith  V.  Fellows,  774 

Smith  V.  First  Presb.  Church,  757 

Smith   V.  Floyd,   694 

Smith   V.   Gilbert,   663 

Smith    V.    Greeley,    511,    528,    599, 

697 
Smith   V.   Greene,   546 
Smith  V.  Hall,  618,  689,  692 
Smith   V.   Hankins,   594,   676 
Smith  V.  Harrison,  410 
Smith  V.  Henline,  97.  122,  123,  125, 

128,   131,  370,  382,  398,  411,  414, 

424 
Smith  V.  Hilliard,  658 
Smith  V.  Holden,  44,  49,  53,  65,  205, 

209,   213,   340,   341 
Smith  V   Hutchinson,  489 
Smith   V.    Jackman,    669,    670,    710, 

760,  802 
Smith  V.  James,  416,  426 
Smith  V.  Jewett,  492 
Smith  V.  Jones,   142,  148,   191,  192, 

466,   482 
Smith    V.    Kimball,    538,    592,    676, 

819,  823 
Smith  V.  Mason,  750,  757 
Smith  V.  McChesney,  267 
Smith  V.  McCormick,  595 
Smith  V.  Mclntire,  689 
Smith  V.  Olmstead,  291,  292,  296 
Smith  V.  Parsons,  669 
Smith  V.  Pierce,  75,  79 
Smith  V.  Rice,  656 
Smith  V.  Robertson,  287,  296 
Smith  V.  Runnels,  570 
Smith  V.  Secor,  466,  744 
Smith  V.  Sheehan,  56,  291,  292 
Smith  V.  Smith,  23,  70,  74,  97,  101, 

105,   106,   120,   132,  159,  162,  168, 

323,  341,  301,  385,  390,  411,  426, 

429,  476,  507,  742 
Smith  V.  Tebbitt,  94,  105 
Smith  V.  Towers,  685 
Smith's  Appeal,  674 
Smith's  Estate.   343,   602,   652,   670, 

710,    715,    723,    735 
Smith,  Goods  of,  61,  249 


TABLE  OF  CASES. 


1061 


(References  are  to  sections.) 


Smith,  In  re,  49,  65,  305,  414,  487, 

524,  545,  684,  726,  741 
Smith's  Trusts,  468 
Smith's  Will,  111,  216 
Smith's  Exr's  v.  Smith,  414,  428 
Smithdeal  v.  Smith,  240 
Smither  v.  Willcock,  656 
Smithers  v.  Jackson,  462 
Smithsonian    Institution    v.    Meech, 

683 
Smock  V.  Smock,  248,  249,  258,  449, 

450 
Smythe  v.  Smythe,  576 
Snedekers  v.  Allen,  199 
Sneed  v.  Ewing,  244,  283 
Sneer  v.  Stutz,  613,  691 
Snelgrove  v.  Snelgrove,  217 
Snelling's   Estate,   102 
Snider  v  .Burks,  209 
Snider  v.  Nesbitt,  663 

Snider  v.  Snider,  787,  790 

Snow  V.  Hamilton,  325 

Snow   V.    Snow,    669 

Snow   V.    'leed,    528 

Snowhill  V.   Snowhill,  267,  268 

Snover  v.   Squire,  709 

Snuffer  v.  Howerton,  313,  321 

Snyder   v.   Baer,   562,   574,   575 

Snyder  v.  Castor,   72 

Snyder  v.  Nesbitt,  561 

Snyder's    Estate,    659 

Society  v.  Attorney  General,  642 

Society  v.  Hatch,  823 

Society,  etc.,  v.  Lover idge,  199 

Society  v.  Moll,  643 

Soher's    Estate,    167,    229,    264 

Solari  v.   Barras,   325,   365 

Soper  V.   Brown,   526,   551 

Sorsiby  v.  Vance,  461 

Soteldo  V.  Clement,  545 

Soules,  In  re,   669 

South  V.  South,  698 

South      Mahoning      Township      v. 
Marshall,    463.    751 

Southard  v.  R.  R.,  147 

Southard's  Will,  356 


Southgate  v.  Clinch,  515 
Southworth  v.  Adams,  437,  441 
Southworth  v.  Sebree,  758,  802 
Soward  v.  Soward,  185,  221 
Sowers  v.  Cyrenius,  843,  649 
Spalding  v.  Spalding,  676,  713 
Spangler  v.  Dukes,  727 
Sparhawk  v.  Cloon,  685 
Sparhawk    v.    Sparhawk,    191,    192, 

194 
Sparks  v.  Restal,  468 
Spath  V.  Ziegler,  794 
Spear  v.  Fogg,  656,  657 
Speedling    v.    Worth    County,    100, 

101 
Spehn  V.  Huebschen,  333 
Spence  v.  Widney,  641,  645,  646 
Spencer  v.  Green,  667,  668 
Spencer  v.  Higgins,  820 
Spencer  v.  Bobbins,  5z 
Spencer's   Estate,    111,    127,   387 
Spencer,   In   re,    659 

Spencer,   Petitioner,   771 

Spiegelhalter's  Will,   199,  362 

Spraage  v.  Stone,  283 

Sprague  v.  Smith,  210 

Spratt  V.    Spratt,   97,   210 

Spratt,  In  re,  229 

Spreen  v.  Sandman,  729,  732 

Springfield,  In  re,  468 

Springer  v.  Coughton,  543,  551 

Springer  v.  Savage,  659 

Sprinkle  v.  Hayworth,  79 

Spruance  v.  Darlington,  719 

Stacey,  In  re,  320 

Stacey's  Will,  343 

Stackpole  v.  Beaumont,  681 

Stableton   v.   Ellison,   575,   576 

Staebler,  In  re,   25,   773 

Stafford  v.  Martin,  561 

Stafford  v.   Villain,  243 

Staines  v.   Burton,  641,  643,  647 

Stamm  v.  Bostwick,  150 

Stamper  v.  Hooks,  236 

Stancell  v.  Kenon,  97,  102 


1062 


TABLE  OF  CASES. 


(References  are  to  sections.) 


Stanfield's  Estate.  601 

Stanley   v.    Safe   Deposit    Co.,    340, 

341 
Stanley  v.  Stanley,  668 
Stannard  v.  Barnum,  141 
Stanton   v.   Miller,   79 
Staples  V.   Lewis,   533 
Staples  V.  Wellington,  113 
Starbuck  v.   Starbuck,  780 
Stark  V.  Lipscomb,  574 
Starke  v.   Conde,   675,   745 
Starkweather     v.     American     Bible 

Society,  36,   153 
Starkweather  v.   Bell,   344 
Starkweather    v.    Society,    816 
Starling  v.   Price,  462,  522,  545 
Starr  v.  Starr,  602 
Staser  v.  Hogan,  427 
State  V.  Blake,  644,  648 
State  V.  Buckner,  332 
State  V.  Holmes,  466,  467,  629,  636, 

640,  745,  746 
State  V.  White,  341 
State  ex  rel.  v.  Willrich.  659 
Stead  V.  Manton,  561 
Stebbins  v.  Lathrop,  317 
Stebbins   v.    Stebbins,   293,   507 
Stebbin's  Estate,  291.  820 
Stedman  v.  Priest,  543 
Steele  v.  Helm,  97,  125,  382 
Steele   v.    Price,    437,   449 
Steib  V.  Whitehead,  685 
Stein   V.   Gordon.   802 
Stein  V.  Stein,  622,  689 
Steiner  v.  Kolb,  564 
Steinhardt  v.  Cunningham,  618 
Steinke's   Will,   348,   442,   443,   449, 

450 
Steinmetz's   Estate,   605 
Stephens  v.  Flower,  576 
Stephens  v.  Milnor,   608 
Stephens  v.  Stephens,  173 
Stephen's  Estate,  670 
Stephen's    Succession,    632 
Stephenson  v.  Stephenson,  208,  366, 

400,  423 
Sternberg's  Estate,   314,  453 
Sternberg,  In  re,  270 


Sternmetz's  Estate,  463 

Stetson   V.   Eastman,   742,  744 

Stevens  v.  Bagwell,  89 

Stevens  v.  Dewey,  806,  807,  808,  812 

Stevenson   v.   Dunlap,    150 

Stevens  v.  Flower,  750 

Stevens  v.   Gregg,    (55 

Stevens  v.  Hope,  273,  449 

Stevens  v.  Leonard,  333,   387,  388, 

401 
Stevens  v.  Shippen,  288,  293 
Stevens  v.   Stevens,   115,  402 
Stevens  v.  Underbill,  507,  764 
Stevens  v.  Van  Cleve,  174,  180 
Stevens,  In  re,  820 
Stevenson  v.  Abington,  532 
Stevenson  v.  Brown,  473 
Stevenson  v.  Evans,  461,  471,  631, 

633 
Stevenson  v.  Scott,  488 
Stevenson  v.  Stevenson,  570 
Stevenson  v.  Superior  Court,  341 
Stewart  v.  Hall,   324 
Stewart  v.  Harriman,  192,  199,  362 
Stewart   v.    Jordan,    120,    124,    1.32, 

426 
Stewart    v.    Mulholland,    274,    281, 

284,   305 
Stewart  v.  Pattison,  461 
Stewart  v.  Powell,  281,  286 
Stewart  v.   Powers,  513 
Stewart  v.  Row,  341 
Stewart    v.    Stewart,    52,    205,    210, 

375,  405,  406.  487,  760,  787 
Stewart's  Estate,  325,  467,  515,  547 

549 
Stewart's  Succession,  231 
Stewart's  Will,  331,  449 
Stickney's  Will,   36,   153,  274,  276, 

305,   454 
Still  V,  Spear,  461 
Stilley  V.  Folger,  729 
Stirling  v.  Stirling,  414 
Stivers   v.   Gardner,   570,   571,   580, 

681 
Stoakes,  Goods  of,   187 
Stockbridge,  In  re,  551 


TABLE  OF  CASES. 


1063 


(References  are 

Stockier  v.  Thornton,  136,  141 

Stockton  V.  Wooley,  732 

Stoddart  v.  Melson,  532 

Stoff  V.  McGinn,  689,  808,  812 

Stokes  V.  Pillow,   138,  716 

Stokes  V.  Norwood,  711 

Stokes  V.  Stokes,  31,  522 

Stokes    V.    Vanwyck,    466,    658 

Stokes  V.  Weston,  658,  676 

Stokes,  In  re,  764 

Stone  V.  Damon,  115 

Stone  V.  Griffin,  643 

Stone  V.  Pennock,  796 

Stone  V.  Vandermark,  713,  721 

Stone,  In  re,  554 

Stonestreet   v.    Doyle,   744 

Story  V.   Palmer,   689 

Storey,  In  re,  318,  339 

Storey's  Will,  127,  324,  410,  420 

Storer's  Will,  404,  410 

Storrs  V.  St.  Luke's  Hospital,  321, 

325 
Stoser  V.  Hogan,  394 
Stout   V.   Rayle,   52 
Stout  V.  Stout,  803 
Stover    V.    Kendall,   254,    260,   276, 

299,  311 
Stowe  V.  Stowe,  321 
Stowell  V.  Hastings,  574 
Strain  v.  Sweeney,  514,  631 
Stratheden   and    Campbell,    In    re. 

Lord,   632,   653 
Stratton  v.  Morgan,  820 
Streatly,  Goods  of,  221 
Strieker   v.   Oldenburgli,   233 
Strieker  v.  Groves,  195 
Striewig's    Estate,    506,    545 
Striker   v.   Mott,    658 
Stringfellow  v.  Early,  346 
Stringfellow   v.    Somerville,   45 
Strong  V.   Cummin,   462,   471,   676 
Strong  V.   Smith,   551 
Strong's   Appeal,   643,   647 
Strong,  In  re,  221 
Stroup   V.    Stroup,   52,   53 
Strum   V.   Sawyer,   590 
Stubbs  V.  Houston,  279,  382 
Studdard  v.   Wells,    140,    147 


to  sections.) 

Stumpeuhousen's    Estate,    44,    473, 

576,  806 
Stunz  V.   Stunz,    138,   713 
Stuart  V.  Carson,  776 
Sturdevant's    Appeal,    85,    97,    333, 

383,   385 
Sturdivant  v.  Birchett,  215 
Stuart  V.  Bute,  492 
Sturgis   V.    Cargill,   466 
Sturgis  V.   Paine,   611 
Sturgis    V.    Work,    268,    269,    460. 

462,   470,   542,   809,  816 
Sudeley,  In  re,  629 
Sugden  v.  McKenna,  562,  676 
Sugden   v.    St.    Leonards,   437,    441, 

444 
Suggett   V.   Kitchell,    157 
Suisse  V.  Lowther,  799 
Sullivan    v.    Foley,    125,    126,    127, 

133,   191,   428,   429 
Sullivan    v.    Latimer,    504,    796 
Sullivan  v.  Parker,   156,  525 
Sullivan    v.    Strauss.    470,    544 
Sullivan     v.     Sullivan,      192,      197, 

198,   348 
Sullivan's    Estate,    58 
Sullivan's     Will,     363,     372,     373, 

375,    377,    380 
Sumerel    v.    Sumerel,    710 
Sumner    v.    American    Home    Mis- 
sionary  Society,   771 
Sumwalt  V.   Sumwalt,  329 
Sunday's  Estate,  54 
Sunderland  v.  Hood,  411 
Sutherland   v.   Sutherland,   712 
Sutherland   v.   Sydnor.  46,  407 
Sutton   V.   Hayden,   75,   79 
Sutton    V.    Reid,    733 
Sutton  V.   Sutton,   254 
Surdam    v.    Cornell,    637 
Suydam   v.   Voorhees,   764 
Svanburg  v.  Fosseen,  75,  79 
Swails    V.    Swails,    278,    279,    782 
Swails  V.  White,  414 
Swain   v.   Edmunds,   223,   227,   370, 

371 
Swallow    V.    Swallow,    543,    551 
Swan  V.  Hammond,  281,  283,  284 


1064 


TABLE  OF  CASES. 


(References  are  to  sections.) 


Swan   V.    Sayles,    21,    281,    284 
Swann   v.   Housman,   44,   55,   269 
Swarthout  v.  Ranier,   57G 
Swartz  V.  Gehring,  570 
Swartz  V.  Steel,  75 
Swasey  v.  Jaques,  515,  521 
Swash  V.  Sharpstein,  74 
Swazey     v.     Blackmail,     312,     313, 

343 
Sweeney  v.   Warren,   691 
Sweet   V.   Burnett,   496 
Sweet   V.   Dutton,   515 
Sweet,    In    re,    370 
Sweetland   v.    Sweetland,    186 
Sweitzer's    Estate,    475,    507 
Swenson's    Estate,    468,    514,    515, 

546 
Swett    V.    Boardman,    44,    47,    227 
Swift  V.   Wiley,   189,   222 
Swihart    v.    Swihart,    736 
Swing    V.    Gateh,    797 
Swinton  v.  Bailey,  254 
Swope  V.  Donnelly,  377 
Sykes  v.  Van  Bibber,  772,  774 
Sykes,  Goods   of,   432,   433 
Syme  v.  Badger,  721 


» 


Tabler  v.  Tabler,   44,   236 
Tabor    v.    Mclntire,    467 
Tabor   v.    Tabor,    611 
Taff  V.  Hosmer,  382 
Taft  V.  Taft,  717 
Taggart   v.   Murray,    548 
,Tainter  v.   Clark,   642 
Tallbird   v.    Bell,   290 
Talbot   V.    Schneider,    673 
Talcott  V.   Talcott,   543 
Tallman's    Estate,    423,    428 
Tallman's   Will,    110 
Tamplin,   Goods   of,    314,    315 
Tandy   v.    Cook,    497 
Tanton  v.  Keller,   308,   780,  783 
Tappan  v.  Deblois,  643 
Tappan's   Appeal,    672 


Tappen    v.    Davidson,    223,    371 
Tarbell  v.  Walton,   315,   355 
Tarrant   v.    Backus,    618,    631 
Tarver  v.   Tarver,   61,   63,   340,   674 
Tate  V.  Clark,  567 
Tate  V.  Tate,  230,   330 
Tatnall  v.  Hankey,  39 
Taubenhan  v.  Dunz,  466,  471,  475, 

477,   488,   820 
Taylor   v.   Bell,   373,   573 
Taylor  v.  Benham,  150 
Taylor    v.    Bennett,    317,    350 
Taylor   v..  Brown,    574 
Taylor  v.   Bryn  Mawr   College,   645 
Taylor    v.    Cox,    23,    96,    244,    373, 

382,  450,  742 
Taylor   (or  Baker)    v.  Dening,   173 
Taylor   v.    Elder,    605 
Taylor  v.   Fauver,   557 
Taylor  v.   Foster,  594 
Taylor   v.   Galloway,   691 
Taylor  v.  Kelly,   102,  278 
Taylor   v.   Lanier,   751 
Taylor    v.    McRa,    24 
Taylor   v.    Meads,    92 
Taylor   v.  Mosher,   659 
Taylor    v.    Pegram,    98,    102,    244, 

266,    384,   400,    429 
Taylor  v.  Taylor,   199,  273 
Taylor    v.    Tibbatts,    321 
Taylor    v.    Trich,    104,    111,    382 
Taylor's  Appeal,  237,  239 
Taylor's    Estate,    487,    776 
Taylor,    In    re,    794 
Tawney  v.  Long,  108,  423 
Teacle's    Estate,    267 
Teats  V.  Flanders,  70,  81 
Teegarden  v.  Lewis,  409 
Teel   V.    Hilton,    767 
Teele  v.  Bishop  of  Derry,  641,  649, 

655 
Teese  v.  Kyle,  574 
Temple  v.  Chandos,  278 
Temple   v.   Mead,   159 
Temple  v.  Pasquotank  County,  746 
Terrell    v.    Reeves,    572,    628,    630, 

631 
Terry  v.   Bourne,   579 


TABLE  OF  CASES. 


1065 


(References  are  to  sections.) 


Terry  v.  Brunson,  591 
Terry  v.  Buffington,  394 
Terry  v.  Edminster,  278 
Thayer   v.    Finnegan,    751 
Thayer   v.    Spear,    681 
Thayer    v.    Wellington,    165 
Thelluson  v.   Woodford,   473,   638 
Theological    Seminary    v.    Calhoun, 

374 
Theurer's  Succession,  23 
Thieband    v.    Tait,    602 
Thieme  v.  Zumpe,  597 
Thomas    v.    Black,    291,    292,    293, 

294 
Thomas  v.  Carter,  108 
Thomas  v.  Gregg,  632 
Thomas  v.   Levering,   269,  462,   526 
Thomas  v.  Miller,  570 
Thomas  v.  The  People,  341 
Thomas   v.   Thomas,   300,    301,   302, 

491,    548,    595,    744,    765 
Thomas  v.  Wall,  236 
Thomas  v.  Wood,  324 
Thomas,  In  re,  578,  602,  631,  684 
Thomas's    Will,    260,    367,    370 
Thomman's  Estate,   668,   700 
Thompkins   v.   Miller,   689 
Thompson  v.   Beasley,   526 
Thompson    v.    Churchill,    798,   800 
Thompson   v.  Davitte,  219 
Thompson   v.   Hawks,    111,   420 
Thompson    v.    Hoop,    678,    732 
Thompson  v.  Ish,  97,  127,  386,  410 
Thompson  v.   Johnson,   49 
Thompson   v.    Kyner,    96,    98,    126 
Thompson   v.   Newlin,   465 
Thompson  v.  Owen,  223 
Thompson    v.    Peake,    676 
Thompson  v.  Rainier,   329 
Thompson  v.  Shackleford,  467 
Thompson  v.  Stevens,  72,  73,  225 
Thompson  v.   Swoope,   153 
Thompson   v.   Teulon,   799 
Thompson   v.   Thompson,    173,   21 S 

401,   424,   472,   766,   819 
Thompson    v.    Tucker-Osborne,    73 
Thompson  v.  Wilson,  796 
Thompson's  Estate,  764 


Thompson,    In    re,    25,    382,    383 
Thompson's    Trusts,    515 
Thomson  v.   Thomson,   473,   487 
Thorald  v.  Thorald,  55 
Thorington    v.    Thorington,    563 
Thorn   v.   Garner,  803 
Thorndike  v.  Reynolds,  91 
Thorne  v.   Allen,   005 
Thorne   v.    Thorne,    724 
Thornington   v.   Hall,   814 
Thornton   v.    Stanley,   685 
Thornton    v.    Thornton,    366 
Thornton   v.   Zea,  813 
Thorpe  v.   Bestwick,   192,   197 
Thrasher   v.    Ballard,   691 
Thrasher   v.    Ingram,    461 
Thrall  v.  Spear,  576 
Three      States      Lumhir      Co.      v. 

Rogers,    488 
Throckmorton    v.    Holt,    377 
Thurber   v.   Battey,   459,    461,    775, 

803 
Thurston  v.  Bissel,  690 
Thurston   v.    Prather,    326 
Thyng  v.   Moses,   803 
Tibbe  v.  Kamp,  405,   406,  419,  429 
Tichenor  v.  Brewer,  527,  643,  647 
Tichenor  v.   Tichenor,   803 
Teele  v.  Hathaway,   467 
Tienken  v.  Tienken,  662 
Tilden  v.  Green,  610.  619,  639,  643 
Tilden   v.    Tilden,     205,     206,     227, 

269,  800 
Tilley  v.  Ellis,  819,  823 
Tilley  v.   King,   672,   673 
Tillinghast    v.    De  Wolfe,    522 
Tillman's   Estate,  279 
Tilton   v.    Society,   823 
Tilton.  In  re,  576 
Tindall  v.  Miller,  579 
Tindall  v.  Tindall,   507 
Tingier  v.  Chamberlain,  629,  633 
Tingley   v.   Harris,    522,   597 
Titlmv   V.    Titlow,    388,    390,    401 
Titlow's  Estate,  345 
Titus  V.  Gage,   105,   330,  391,   395, 
397.  403 


1066 


TABLE  OF  CASES. 


(References  are  to  sections.) 


Tobin   V.   Jenkins,   97 

Todd  V.  Fenton,  96 

Todd  V.  McFall,   758,  791 

Todd   V.   Sawyer,   684 

Todd  V.   Wortman,   660,   689 

Toebbe    v.    Williams,    44,    229,    230, 

432,   450 
Toland   v.   Toland,   614,   635,   637 
Tolman    v.    Tolman,    780 
Toman  v.   Dunlop,   561 
Tomlinson   v.   Bury,   768,   772 
Tomlinson  v.  Tomlinson,  288 
Tomlinson's   Appeal,   249,   254 
Tomlinson's  Estate,  159,  449 
Tomkins  v.  Griffin,  500 
Tomkins  v.  Miller,  689 
Tomkins  v.   Tomkins,   97,  414 
Tompkins    v.    Merriman,    717,    814 
Tompkins    v.    Tompkins,    312,    324, 

339 
Tompkin's    Estate,     145,    506,    587, 

590,   -618,    662 
Toms   V.   Owen,    611 
Toner  v.   Collins,   659,  616 
Tonge,   Goods   of,   267 
Tonnele    v.    Hall,    162,    186,    203 
Tonnele  v.  Zabriskie,  34 
Toomes's     Estate,     174,     177,     204, 

389 
Tope  V.  Top.e,  604,  751 
Torrey   v.    Burney,    392,   427 
Torrey   v.    Torrey,    806,   808 
Tourinoir  v.  Tourinoir,  208 
Tower's    Estate,    635 
Towle   V.    Xessmitb,    639,    643,    647 
Towle    V.    Swasey,    ^68,    771,    773, 

776 
Towle   V.   Wood,   56,   57 
Townley  v.  Watson,  254 
Townsend  v.  Bogart,  100 
Townsend  v.  Howard,  276,  450 
Townsend   v.    Mostyn,    798 
Townsend   v.   Pearce,   173 
Townsend  v.  Peperell,  403 
Townsend  v.  Rackham,  49 
Townsend    v.    Townsend,    461,    471, 

514.    542,   750,   755 
Townsend   v.   Vanderwerker,   70.   79 


Townsend's  Contracts,  In  re,  618 

Townsend   v.    Howard,   249,   449 

Tozer  v.  Jackson,  315 

Tracy's  Estate,  729     ' 

Trammel    v.    Trammel,    786 

Traphagen  v.  Le\y,  561,  614,  806, 
808 

Trapnell   v.    ConkljTi,   22 

Travis   v.   Morrison,    659 

Trawick    v.    Davis,    53,    313 

Treasy   v.    Ireasy,    737 

Tredwell,   In  re,   802 

Trembly    V.    Trembly,    177,    366 

Trew  V.  Perpetual  Trustee  Com- 
pany,  681 

Trexler    v.    Holler,    676 

Trezevant  v.  Rains,  102,  127,  132, 
180,   405 

Trich's  Will,  108 

Trim's   Estate,   643,   647 

Trimble  v.  Lebus,  689 

Trimlestown    v.    D'Alton,    131 

Trimmer   v.   Bayne,   783 

Trimmer  v.  Jackson,  227 

Trinitarian,  etc..  Society,  Appell- 
ant,   194 

Trish    V.    Xewell,    98,    383    . 

Trost    V.    Dingier,    130 

Trotter    v.    Trotter,    291 

Trotter,    In    re,    196 

Trowbridge    v.    Metcalf,    28 

Troy   V.   Evans,    340 

Trufant  v.  Xunneley,  636 

Trumbull   v.    Trumbull,    565 

Truslow,    In    re,    550,    551 

Trustees    v.    Guthrie,    819 

Trustees  of  Amherst  College  v. 
Ritch,    334.    620,    621 

Trustees  of  Church  Home,  etc.,  v. 
Morris,  802,  804 

Trustees  of  Emory  and  Henry  Col- 
lege  V.    Shoemaker   College,    537 

Trustees   0.   S.   U.  v.   Folsom,  25 

Tucker  v.  Cole.  332 

Tucker   v.   Inman,   89 

Tucker  v.  Lungren,  765 

Tucker  v.   Move,   752 


TABLE  OF  CASES. 


1067 


(References  are 

Tucker  v.  Sandidge,   116,   179,  209, 

398 
Tucker  v.   Tucker,    199 
Tucker's   Will,   545,   549 
Tudor   V.   Tudor,   254 
Tuller's    Will,    284 
Turley    v.    Turley,    527,   564,    633 
Turner   v.   Balfour,   664 
Turner   v.    Clieesman,    125 
Turner  v.   Cook,   94,  205,  206,   210, 

227,    382 
Turner  v.   Durham,   577 
Turner  v,  Gibb,   750,   755 
Turner   v.    Laird,    764,   765 
Turner   v.   Patterson,    462 
Turner   v.    Rusk,    111 
Turner   v.    Scott,   53 
Turner  v.  Wilson,  572 
Turner  v.   Withers,  468 
Turner's    Guardian    v.    King,    333 

345,    387 
Turner's  Appeal,  96,  127,  333,  364, 

390 
Turner's  Estate,  784 
Turnour,   Goods   of,  264 
Turnure  v.   Turnure,   223,   385,  421 
Turrill  v,  Northrop,  566 
Tusch    V.    Savings    Bank,    57 
Tuttle  V.   Berryman,   166,   167,    314 
Tuttle  V,  Puitt,  554,  559 
Tuttle's    Case,    602 
Tweddell  v.   Tweddell,  766 
Twombley's.  Will,   337 
Tygart  v.   Peeples,   341 
Tyler  v.  Gardiner,  414 
Tyler   v.   Merchant   Tailor   Co.,   299 
Tyler  v.  Tyler,  281,  288 
Tyler    v.    Wheeler,    89,    137,    326 
Tjier's    Estate,    372,    373 
Tyler,    In    re,    690 
Tyrrell  v.  Painton,  406,  414,  700 
Tyson   v.   Tyson,   382,   806 
Tyson's   Estate,   596 


to  sections.) 


u. 


Underwood     v.     Curtis,     630,     636, 

701 
Underwood    v.    Bobbins,    520 
Union    Savings    &     Trusti    Co.,    v. 

Darr,    669 
Unitarian    Society    v.    Tufts,    769, 

780 
United   States  v.  Fox,  154 
United    States    Trust    Company    v. 

Block,  773 
University    v.    Barrett,    52 
Upchurch    v.    Upchurch,    173,    221, 

222 
Updike  V.  Ten  Broeck,  74 
Uppington   v.    Bullen,    148 
Upington  v.   Corrigan,   147 
Urich's    Appeal,    463 
Urmey  v.  Wooden,  647 
Usticke  V.   Bauden,   271 
Utasey   v.   Giedinghagen,    150 


V. 


Valentine's    Will     348,     349,     350, 

361,    437,    441,    443,    449,    450 
Van    Arsdale   v.    Van   Arsdale,    728 
Van  Brocklin's  Estate,  692 
Vance  v.  Upson,  316,  321,  322,  403 
Vance's    Estate,    737,    772 
Van  Denzer  v.  Gordon,  233 
Vanderzee  v.   Slingerland,   676,   741 
Vandeveer  v.  Higgins,  284 
Vandeveer's  Will,  47 
Vandervort's    Estate,    680 
Vnndiver    v.    Vandiveir,    470,    488, 

819 
Vandruff  v.  Rinehart,   180 
Van  Duyne  v.  Vreeland,  47,  72,  73, 

75,   79 
Van  Giesen  v.  White,  674,  806 
Van    Grutten    v.    Foxwell,    269 
Van    Guysling   v.    Van    Kuren,    97, 

111 
Van  Hanswyck  v.  Wiese,  173 
Vanhille's   Succession,   230 


1068 


TABLE  OF  CASES. 


(References  are 

Van  Horn    v.    Campbell,    684 

Van  Horn,    In    re,    684,    686 

Van  Houten     v.     Pennington,     473, 

550 
Van  Houton   v.   Post,   783 
Van  Huss  v.  Rainbolt,  388 
Vannerson    v.    Culbertson,    471 
Van  Xest  v.   Van   Nest,   774 
Van  Nostrand     v.     Board     of     Do- 
mestic Missions,  539 
Van  Ormen  v.  Van  Ormen,  405 
Vansant  v.  Roberts,   153 
Van   Schaack   v.   Leonard,   500,   715 
Van  Svckel   v.   Beam,    138 
Van  Svckel    v.    Van    Svckel.    511 
Van  Wickle    v.    Van    Wickle,    296 
Varner  v.  Bevil,  28 
Varner  v.  Johnston,   340,   341 
Varner   v.   Varner,   403,   422 
Varney  v.   Stevens,   560 
Varnon   v.    Varnon,    161,    248,    254, 

260,    276,    299 
Varrell    v.    Wendell,    529 
Vaughan   v.    Bunch,   269 
Vaughan  v.   Farmer,   692 
Vawser  v.  Jeffrey,  278 
Veeder  v.  Meader,  575 
Venable    v.    Mercantile    Trust    Co., 

692 
Verdier   v.   Verdier,   227,    278 
Vernon   v.   Jones,   278 
Vernon  v.  Kirk,  178 
Verplank,   In  re,   812 
Verrinder  v.  Winter,  288,  289,  292, 

293 
Very    v.    Very,    157 
Vestry     of     St.     John's     Parish     v. 

Bostwick,     157,     161,     162,     165, 

.307,    317,    341,    343 
Vidal  V.  Girard,  639,  640 
Vidal's  Succession,  329 
Viele    V.    Keeler,    269 
Vincent  v.  Xewhouse,   739 
Vines  v.  Clingfost,   ISO 
Vining  v.  Hall,   277,  434 
Vinson  v.   Vinson,   52 
Vitt  V.   Clark.   787,   788 
Vogel  V.  Lehritter,   221,   307 


to  sections.) 

Vollmer's    Succession,   241 

Vom   Vechten   v.   Keator,   268 

Von  de  Veld  v.   Judy,   85,   96,    102, 

333,  334,  384,  394 
Von  Phul  V.  Hay,  711 
Vorhees  v.  Vorhees,  257 
Voorhis's   Will,    158,   226 
Vrooman  v.  Powers,   191,  192,  196, 

238,  447 

W. 

Waddell   v.-   Waddell,   81 
Waddington    v.     Buzby,     102,     223, 

406.    414 
Wade  V.  Dean,  797 
Wadsworth   v.   Sharpsteene,   115 
Wagner  v.  Ellis,  91 
Wagner  v.  Ziegler,  331 
Wainwright  v.  Wainwright,  411 
Wait    V.    Belding.    141.    561 
Waite  V.  Frisbie.  44,  119,  123,  176. 

180.  209.  380 
Wake  V.  Wake,  727 
Wakefield  v.   Phelps.   21,   93,   156 
Waldron  v.  Waldron,  820 
Waldron's    Will,    257 
Wales    V.    Bowditch,    685 
Wales  V.  Templeton,  487,  502 
Walker    v.    Atmore,    668,    755 
Walker   v.    Boughner,   73 
Walker  v.   Gibson,   599 
Walker  v.  Hall,   281.  288.  290,  202 
Walker   v.  Jones,   53 
Walker    v.    Mower,    669 
Walker   v.   Parker,   467 
Walker  v.   Pritchard,   581 
Walker  v.  Redding.   138 
Walker   v.    Skeene,    193 
Walker    v.    Walker,    67,    210,    211, 

329,    331,     392 
Walker  v.  Webster,  554,  559 
Walker's    Estate,    189,    219 
Walker,  Goods  of,  156 
Walker,   In    re,    186 
Walker's    Will,    183.    315 
Walkerly's    Estate,    137,    629,    632, 

635,  669 


TABLE  OF  CASE8. 


1069 


(References  are 

Wall  V.  Dickins,  733 

Wall  V.  Wall,  44,  52,  312,  341 

Wall's  Appeal,  73 

Wallace  v.   Dening,   579 

Wallace  v.   Du   Bois,   742,   783.   784 

Wallace  v.  Harris,  411 

Wallace  v.  Long,  74,  75,  78 

Wallace  v.  McMicken,  528 

Wallace  v.  Minor,  471,  512 

Wallace  v.   Rappleye,   72,   79 

Wallace  v.   Sheldon,   344,   345 

Wallace    v.    Smith,    685 

Wallace   v.   Wallace,   767 

Waller  v.  Marks,   346 

Waller.  In    re.   819 

Wallis    V.    Luhring.    94,    333:    401. 

424 
Wallis  T.   Wallis,   270 
Walls  V.  Walls,  267,  501 
Wain's  Estate,   738,  739 
Walpole  V.  Apthorp,   774 
Walpole   T.    Orford,    69,   70,    72,    74 
Walsh  V.  McCutcheon,  670 
Walter   v.   Hensell,    533 
Walters    v.    Maunde,    702 
Walters   v.   RatlifF,   321 
Walters  v.   Walters,    116,  209 
Walter's  Will.  160 
Walton  V.  Hall,   315.   356 
Walton  v.  Kendrick,   158,  204,  376, 

377,    380 
Walton   V.   Walton.   278 
Walton    V.    Williams,    315 
Walton's   Estate,    311 
Ward  V.  Barrows,  473 
Ward  V.   Bush,   739 
W*ard    T.    Congregational    Church, 

341 
Ward  V.  Cooper.  522.  523 
Ward  V.   Saunders,  462 
Ward    V.    Stow,    526 
Ward    V.    Ward.    44.    52.    202.    604, 

806,  808 
Ward's  Will,   284 
Wardens,  etc.,  of  St.  Paul's  Church 

V.    Attorney    General.    641.    642, 

647 
Wardwell  v.  Hale.   669 


to  sections.) 

Wardwell    v.    McDowell,    692 

Wardwell   v.   Wardwell,   45 

Ware  v.   Rowland,   547 

Ware,   In    re,   533 

Warfield   v.   Fox,   340 

Warford  v.  Colvin,  312 

Warford  v.  Van  Sickle,  329 

Wargent  v.  Hollings,  449 

Waring   v.    Bosher,    597 

Waring   v.    Waring   94,    104,    676 

Warley   v.    Warley,   777 

Warner  v.  Beach.  283,  285 

Warner  v.  Miltenberger,   819 

Warner   v.   Rice,    528 

Warner   v.    Sprigg,   564 

Warner  'v.    Warner,    249,    306 

Warner  v.   Williard,   463,  470 

Warner's  Appeal,   543 

Warner's   Estate,   611 

Warner.  Ex  parte,  290 

Warren   v.    Baxter,    191,    192,    194 

Warren  v.  Morris,  772,  776 

Warren   v.   Taylor,  278 

Warren   v.   Warren,    137,    138,   602, 

713.   716,  729 
Warter  v.   Warter,   281,   329 
Warwick  v.  Warwick,   181 
Washbon    v.    Cope,    595,    676 
Washburn  v.  Van   Steenwyck,  29 
Washburn's   Estate,   760 
Waterman  v.  Alden,  501 
Waterman    v.    Hawkins,    289,    290, 

293 
Waterman    v.    Whitney,    376,    400, 

423,   450 
Waters  v.  Stickney.  316,  322.  341 
Waters   v.    Waters,    312,   473,   507 
Watkins  v.  Dean,  53,  57 
Watkins   v.   Quarles,   659 
Watson  V.  Adams,  663 
Watson   V.   Alderson.   325 
Watson   T.    Blackwood,   463 
Watson  V.  Conrad.  660 
Watson    V.    Lincoln,    784 
Watson    V.    Pipes,     180.    209.    210, 

227 
Watson  V.  Smith,  657 
Watson  V.  Turner,  322 


1070 


TABLE  OF  CASES. 


(References  are  to  sections.) 


Watson    V.    Watson,    49,    52,    482, 

712,    732 
Watson's  Estate,   323 
Watts  V.  Cole,   144 
Watts     V.     Public     Administrator' 

157 
Watts  V.  Watts,  749 
Watt's  Estate,  25,  267 
Wax's    Estate,    96,    390,    391,    397 
Weathers   v.    McFarland,    72 
Weatherhead  v.  Baskerville,  526 
Weatherhead     v.      Stoddard,      466, 

658 
Weaver    v.    Weaver,    573 
Webb   V.   Archibold,    142,   489 
Webb    V.    Carney,    484 
Webb  V.  Fleming,  216 
Webb    V.    Janney,    312 
Webb  V.  Jones,   284 
Webber   v.    Sullivan,   405,   416,    426 
Weber  v.   Bryant,   619,   643,  646 
Webster  v.  Bible  Society,  804 
Webster   v.   Lowe,    58 
Webster    v.    Thorndyke,    618 
Webster  v.   Webster,   278,   279,   668 
W^ebster  v.   Wies,   494 
Webster   v.   Wiggin,    142,   483,   489. 
626,  641,  642,   719,  748,  759,  803 
804 
Webster's    Estate,    532 
Weeding,    In   re,    497 

Weehawken    Ferry    Co.    v.    Sisson, 
526 

Weeks  v.  Jewett,   598 

Weeks    v.    McBeth,    437 

Wehle   V.   Umpfenbach,    135 

Weiler's   Estate,    752,    753 

Weinbrenner's   Estate,   631 

Weingaertner    v.    Pabst,    76^    77 

Weir  V.   Fitzgerald,   117 

Weir    V.    Smith,    698 

Weir's    Will,    109 

Weisert  v.  Muehl,  136 

Welborn   v.   Tewnsend,    142,   489 

Welch    V.    Adams,    191,    203.    216, 
710,   803 

Welch    V.    Brimmer,   547,   594 

Welch   V.    Brown,   803 


Welch  V.  Welch,  366,  372 
Welder  v.  McComb,   663 
Weldon    v.   Hoyland,   526 
Well's  Estate,   631,  806,  808 
Wellbeloved   v.  Jones,   643 
Weller   v.   Noffsinger,   614,   726 
Welford   v.   Snyder,   595,   597 
Welling  v.  Owings,  239 
Wellington    v.    Apthorp,    74 
Wellington    v.    Wellington,    282 
Welliver   v.    Jones,    569 
Wellons    V.    Jordan,    751 
Wells  V.   Anderson,   467 
Wells   V.    Borwick,   774 

Wells  V.  Child,   324 

Wells     V.     Congregational     Church, 
138,  716,   723 

Wells  V.  Hutton,  558 

Wells  V.  Wells,  254,  278,  324,   342, 
377 

Wells,   Fargo  &  Co.  v,  Walsh,   315, 
317,    358 

Welman  v.  Neufville,  507 

Welsh    V.    Philips,    271 

Welsh    V.    Powndes,    279 

Welsh  V.  Welsh,  372 

W^elsh  V.   Woodbury,  575 

Welty  V.   Welty,   222,   227 

Wemyss  v.  White,  685 

Wengerd's  Appeal,  668 

Wenning  v.   Teeple,   120,   124,   329 

Wentworth    v.    Fernald,    459,    461, 
462,    605,   631 

Wentworth    v.    Read,    747,    820 

Werkheiser  v.  Werkheiser,  234,  237 

West  V.  Moore,  675 

West  V.  Rassman,  554 

West   V.    Shuttleworth,   650 

West    V.    West,    89,    92,    264,    270, 
333,    334,   453 

Westbrook  v.   Vanderburgh,  713 

Westcott  V.  Binford,  565 

Westcott   V.   Sheppard,   102,   127 

Wester   v.    Wester,    238 
Weston   V.   Johnson,   782.   783 
Weston    V.    Massachusetts    General 

Hospital,    622.    771,    7.59 
Weston  V.  Weston,   513 


TABLE  OF  CASES. 


1071 


(References  are  to  sections.) 

Wetherall  v.  Harris,  292 
Wethered  v.   Safe  Deposit  &  Trust 

Company,    759,    806 
Wetmore   v.    Parker,    268,    269 
Wetmore    v.    St.    Luke's    Hospital, 

461 
Wettengel  v.  Gormley,  588,  602 
Wetter  v.   Habersham,   25,   108 
Wetter   v.   Walker,   576 
Weybright  v.  Powell,  594 
Weymouth  v.  Irwin,  668 
Whall  V.   Converse,  545,  547 
Whalen,    Ex   parte,   808 
Whalen  v.  Nesbet,  356 
Wharton    v.    Barker,    547 
Wharton    v.    Masterman,    638 
Wheeler   v.   Bent,   254 
Wheeler  v.  Brewster,  489,  507,  510 
Wheeler  v.  Fellows,  269 
Wheeler   v.   Humphries,    783 
Wheeler   v.   Wheeler,   281,    321 
Wheeler  v.  Wood,  768 
Wheeler,  Goods  of,  258 
Wheelock   v.    American     Tract     So- 
ciety,   610,    619 
Whelen's  Estate,  59,  269,  611,  798, 

800 
Whetton's  Will,    327 
Whetwood  v.  Winston,  593 
Whipple  V.  Eddy,   111,  128,   331 
Whisnand  v.  Fee,  734 
Whitby    V.    Mitchell,    627,    628 
Whitcomb    v.    Rodman,    461,    46(6, 

487,    816,    817 
Whitcomb   v.    Taylor,    594 
Whitcomb's    Estate,    611 
White  V.   Bailey,   392 
White  V.  Brocaw,  710 
White  V.   Casten,   247 
White    V.    Cole,    414,    426 
White   V.    Commonwealth,    562 
White  V.  Dillon,  92 
White  V.  Helmes,  229 
White  V.  Hicks,   698 
White  V.   Holland,  558 
White  V.  Hopkins,  52 
White  V.  Howard,  28,  34,  152,  153, 
607,    673 


White   V.    Kaufmann,    755 

White  V.   Keller,  22,   152,   312   477, 

478 
White  V.   McKeon,   25,   645 
White    V.    Massachusetts    Institute 
of   Technology,   2,   473,   474,   503, 
532,  535,  598,  778 
White  V.  Mayhall,  326 
White  V.    Starr,    102,   409 
White   V.   Trustees   of   British   Mu- 
seum,  206,   227 
Whitney  v.  Twombley,  108 
White   V.   Wilson,    109 
White  V.   White,   528,   562 
White's   Estate,    688,    744,   746 
White,    Goods   of,   248 
White,  In  re,  2,  220,  473,   649 
White's    Will,    104,    105,    106,    120, 

132,  248,  249,  449,  450 
Whited  V.  Pearson,  729 
Whitehead    v.    Gibbons,    764 
Whitehead   v.   Thompson,   752 
Whitehouse    v.    Curgill,    752 
Whitelaw's  Ex'r.  v.  Sims,  320,  366, 

390,    406,   408,    422 
Whitelaw  v.  Whitelaw's  Adm.,  401 
Whitely  v.  King,   449 
Whiteman    v.    Whiteman,    96,    98 
Whitenack    v.    Stryker,    208,    218 
Whitesides   v.   Cooper,   659,   665 
Whitesides   v.   Whitesides.   48 
Whiting's   Appeal,    303,    308,   673 
Whitman  v.  White,  787 
Whitney  v.  Dodge,  31,  35,  626,  635, 

636 
Whitney   v.   Twombley,    97 
Whitney's  Will,   164 
Whiton  V.   Whiton,   49,   74,   79 
Whitty,  In  re,  538 
Whorton  v.  Morgane,  562 
W^icke's   Estate,    315 
Widowson's   Estate,   301,    331,   808 
Wigan  V.  Rowland,   198 
Wicgin  V.  Swett,  609 
Wight  V.  Wallbaum,   341 
Wikoff's   Appeal,   161,    186 
Wilber  v.  Wilber,   137 
Wilburn  v.  Wilburn,  136 


1072 


TABLE  OF  CASES. 


(References  are 

Wilbourn  v.  Shell,  229,  276 

Wilbur   V.    Wilbur,    344 

Wilcke  V.  Wilcke,  151 

Wilcox  V.  Rootes,  283 

Wilcoxon    V.    Wilcoxon,     127,    325, 

333,  415,  429 
Wiidberger  v.  Cheek,  472,  498,  544, 

551,    742,    797,   820 
Wild   V.    Brewer,   287 
Wilday   v.   Barnett,   774 
Wilde   V.   Holtzmeyer,   141 
Wilder   v.   Rowland,   466,  467 
Wilder  v.  Ranney,  692 
Wiley  V.   Gregory,   576 
Wiley's   Estate,   234,   236,   237,   238 
Wilhelm    v.    Calder.    550,    580,    666 
Wilkes   V.   Bannister,    532 
W^ilkes   V.    Burns,    50 
Wilkins  v.  Allen,  467 
Wilkins  V.  Hukill,  340,  341,  346 
Wilkins  v.  Ordway,  513 
Wilkins  v.  Taylor,   199 
Wilkins   v.    Young,    140 
Wilkin's    Succession,   241 
W^ilkinson    v.    Adam,    467 
Wilkinson   v.   Chambers,  562 
Will's  Estate,  127,  194 
Willard's   Estate,   289,   293,   820 
Willett   V.   Carroll,    604 
Willett  V.   Porter,   94 
Willey's  Estate,   162,   314,  639,  647 
Williams  v.    Allen,    468 
Williams  v.  Ashton,  432 
Williams  v.    Burnet,    170 
Williams  v.    Burrows,    689 
Williams   v.    Duncan,    545,    572 
Williams  v.   Emberson,   723 
Williams  v.   Freeman,   162 
Williams  v.   Herriek,   684 
Williams  v.  Jenkins,   680 
Williams  v.   Knight,   522,   533,  561, 

742 
Williams  v.   Leech,    684 
Williams  v.  McKeand,  506 
Williams  v.  Neff,   744 
Williams  v.    Nichol,    754 
Williams  v.    ISToland,    46 
Williams  v.    Pearson,    643 


to  sections.) 

Williams  v.  Pope,  236 
W'illiams  v.  Robinson,  382 
Williams  v.  Spencer,  388,  393 
Williams  v.  Tolbert,  53 
Williams  v.  Tyley,  248 
Williams  v.  Veach,  459 
Williams  v.  Williams,  94,  108,  273 

274,   384,  437,   659 
Williams'   Estate,   507,   803 
Williams,   Goods   of,   183,   185 
Williams,  In  re,  59,  611,  752,  803 
Williamson   v.   Chamberlain,   076 
Williamson  v.  Hall,  596 
Williamson   v.   Nabers,   401 
Williamson's    Will,    46,    227,    341 
Willis   V.  Mott,   205,   216 
Willock  V.  Xoble,  89,  93 
Willoughby  v.  Motley,  73 
Wills   V.    Spraggins,    324,   339 
Wills  V.  Tanner,  333 
Wilmer  v.  Borer,  73 
Wilmot  V.  DeMill,  511 
Wilmot   V.   Wilmot,    551,   580,   613, 

643 
Wilson  V.  Anderson,  52 
Wilson  V.   Beddard,   180 
Wilson  V.   Bryan,   663 
Wilson   V.    Carrico,   52 
Wilson   V.   Denig,   665 
Wilson  V.  Fosket,  294 
Wilson  V.  Fritts,  288,  296 
Wilson    V.    Gaston,    312,    340 
Wilson   V.   Hall,   675,   739,   745 
Wilson  V.  Mitchell,  97,  102,  117 
Wilson  V.  Morris,  559 
Wilson  V.  Ott,  290 
Wilson    V.    Perry,    819 
Wilson   V.    Stephens,   819 
Wilson  V.  Tappan,  313 
Wilson   V.   Turner,   684 
Wilson   V.   White,    548 
Wilson    V.    Wilson,    271,    593,    689, 

723 
Wilson   V.   Wright,   576,    622 
Wilson's  Appeal,  414 
Wilson's  Estate,  23,   112,   122,  321, 

323,   384,   386 


TABLE  OF  CASES. 


1073 


(References  are  to  sections.) 


Wilson,  In  re,  195,  344,  431 
Wilson's  Will,  276,  302,  362,  385 
Wiltbank's  Appeal,  602 
Windham   v.   Chetwynd,    191 
Windisch,   etc.,   Co.   v.   Opp,   329 
Wineland's  Appeal,  186 
Wing  V.   Mix,   462 
Wingrove  v    Wingrove,  411 
Winkler    v.    Simons,    466 
Winkley  v.  Kaime,  487,  819 
Winn  V.  Bartlett,  597 
Winn  V.  Bob,  237 
Winslow   V.   Kimball,   197,    198 
Winslow,  Ex  parte,   188 
Winsor    v.    Odd    Fellows    Associa- 
tion,   522 
Winstanley,  In  re,  684 
Winstead  v.  Bowman,  231 
Winter's  Estate,  546 
Winter  mute   v.    Heinly,   808 
Wise   V.    Foote,    97 
Wise's  Estate,  752 
Wisener  v.  Maupin,  133 
Wistar    v.    Scott,    566 
Wiswell's    Will,    450 
Withers  v.   Patterson,   341 
Withington  v.  Withington,  208 
Withy  V.  Mangles,  521 
Witt  V.  Cutter,   335 
Witt  V.  Gardiner,  211 
Witter  V.   Mott,   203 

Wogan  V.   Small,   278 

Wolf    V.    Bollinger,    254,    260,    274, 
276 

Wolfe  V.  Wilsey,  54 

Wolfer   V.   Hemmer,   561,   562,    564, 
572,   574,   576,   684 

Wolff e   V.   Loeb,   471 

Woman's     Missionary     Society     v. 
Mead,    142,   466,   489,   538,   539 

Wood  V.  Bullard,  546 

Wood   V.   Devers,   414 

Wood   V.    Hammond,    153,    692 

Wood    V.    Kice,    569 

Wood   V.    Lane,    96,    102,    334 

Wood  V.  McGuire,   545 

Wood  V.   Mason,   466,   473 


Wood   V.   Paine,   28,   643,  644,   647, 

807 
'Wood  V.  Roane,  242 
Wood   V.   Seaver,   739 
Wood  V.  Wood,  272,  528,  565,  570, 

572 
Wood's   Estate,   44,   473 
Wood,    In    re,    497,    546,    629,    632, 

781 
Woodbridge   V.    Banning,    312 
Woodbridge  v.  Winslow,  637 
Woodburn's    Estate,    602,    727,    737 
Woodburne    v.    W^oodburne,    676 
Woodbury  v.   Obear,   105,   389 
Woodlill  V.  Patton,  244,  250,  449' 
Woodhouse    v.    Meredith,    483 
Woodley  v.   Findlay,   571 
Woodley,   In   re,    186 
Woodman    v.    Woodman,    482,    659, 

660,  664 
Woodruff   V.   Marsh,   539,   641,   642, 

C48,    655 
Woodruff  V.  Taylor,   324,   339 
Woods  V,  Drake,  290,  291,  292 
Woods  V.  Evans,  72,  73 
Woods   V.   Fuller,   806 
Woods  V.  Nelson,  341 
Woods  V.  Woods,  752,  764 
Woodside's  Estate,  475 
Woodward   v.    Goulstone,   434,   437, 

441 
Woodward  v.  James,  409,  512,  555, 

602,   614,   7,59,   763 
Woodward   v.    Stubbs,   659 
Woodward  v.   Sullivan,  400 
Woodward   v.   Walling,   673 
Woodward  v.   Woodward,  264 
Woodward,   Goods   of,   254 
Woodward,  In  re,  531 
Woodworth's   Estate,   775 
WooUey   v.   Paxson,    551,   742 
WooUey  v.  Woolley,  202,  278 
Woolery  v.  Woolery,  278 
Woolmer's    Appeal,    507 
Woolsey's  Will,  384 
Wooster   v.    Cooper,   576,    595 
Wooster    v.    Fitzgerald,    690,    691 
Wooten  v.  House,  681 


1074 


TABLE  OF  CASES. 


(References  are  to  sections.) 


Wooten  V.  Redd,  461,  467,  473 

Worcester   v.   Worcester,   545 

Word  V.  Whipps,   172 

Wordin's    Estate,    602 

Workman    v.    Dominick,    191,    192, 

199 
Worley  v.  Daniel,  52 
Worley  v.  Taylor,   689 
Worman    v.    Teagarden,    470,    674 
Wornack   v.   Smith,    540 
Worth   V.    Worth,    758 
Worthington    v.    Klemm,   47 
Wotton,  Goods  of,   186 
Wray,    v.    Field,    799 
Wren  v.  Coffey,  53 
Wrenn  v,  Bradley,  681 
Wright  V.  Bell,  553 
Wright  V.  Brown,  656,  657,  658 
Wright    V.    Charley,    658,    676 
Wriglit    V.    Denn,    470 
Wright   V.   Fultz.    352,    353 
Wright   V.   Gooden,    659 
Wright    V.    Jewell,    315,    406 
Wright  V.  Lewis,   109,  210 
Wright  V.  M.  E.  Church,  521 
Wright  V.   Minshall,   279 
Wright  V.  Shaw,  549 
Wright  V.  Smithson,  312 
Wright  V.  Tinsley,  79 
Wright  V.  Wakeford,  219 
Wright   V.   Weston,   774 
Wright    V.    Wright,    70,    206,    298, 

433,    691 
Wright,  Goods  of,   187 
Wuesthoff    V.    Germania    Life    Ins. 

Co.,    44 
Wunderle  v.   Wunderle,   150 
Wurt    V.    Page,    550 
Wyatt   V.   Berry,   216 
Wyche  v.  Clapp,  66,  67,  68,  69 
Wyeth  V.  Stone,  526 
Wyckoff  V.  Wyckoff,  490,  752,  753, 

754 
Wylie  V.  Lockwood,  522 
Wyman   v.    Brown,    52 
Wyman  v.   Symmes,   199 
Wyndham   v.   Chetwynd,   227 
Wythe  V.  Henniker,  765 


Yale  University,  In  re,  154,  644 

Yancey,   Ex   parte,    586 

Y'ardley    v.    Cuthbertson,    414 

Yarnall's    Will,    237 

Y'ates,   In   re,    589 

Yawger    v.    Y'awger,    719 

Yearance  v.   Powell,   72 

Yeatman  v.  Haney,   674 

Y'erby  v.  Yerby,  282,  283 

Yerkes'i    Estate,    769 

Yetter's    Estate,   530,   576 

Yetzer   v.    Brisse,   576 

Yingling   v.    Miller,    643,    647 

Yoe   V.    McCord,    319 

Y'ong  V.  Sant,  117 

Y^ore  V.  Cook,   31 

Yorke's  Estate,    405,    406 

Yost's    Estate,    804 

Youndt   V.   Y^oundt,    437,    450 

Young  V.  Earner,  390 

Y^oung  V.  Benton,  771 

Young  V.  Davies,  526,  593 

Young  V.   Grove,   673 

Young  V.  Harkleroad,  462,  663,  676 

Y'oung  V.  Holloway,   339 

Y^oung   V.    Kinkead,    467,    561,    562, 

564 
Young   V.    Mclntire,    470,    503 
Y'nung  V.  Mallory,  121 
Y'oung  V.   Miller   94,   97,    108,   382 
Y^oung  V.  Morehead,  570 
Y^oung  V.  Mut.  Life  Ins.  Co.,  576 
Y'oung  V.  Sadler,  788 
Y^oung  V.  Snow,  135,  140 
Young  V.   Wark,   48,   330 
Young  V.  Young,  70,  619,  724,  727 
Youngs  V.  Youngs,  507 
Young's  Appeal,  280,  288,  554,  5.58 
Young's    Estate,    46,    58,    162,    166, 

466,  820 
Young,  In  re,  93 
Young's  Will,   199,   331 
Younger  v.  Duffie,  183 
Youse    V.    Forman,    248,    260,    276. 
314 


TABLE  OF  CASES. 


1075 


(References  are  to  sections.) 


Zane  v.  Kennedy,  691 
Zanesville   Canal   &   Manufacturing 
Company  v.   The  City  of  Zanes- 
ville,   (J55 
Zavitz  V.   Preston,   565,   570 
Zeile,   In  re,  269 
Zentner's  Lstate,  772 


Zerega  v.  Pereival,  230,  419 
Ziegler  v.  His  Creditors,   139 
Zillmer  v.   Langduth,   684 
Zimlich   v.   Zimlich,   385 
Zinimer    v.    Sennott,    613 
Zimmerman  v.  Hafer,  162,  467,  468 
Zimmerman   v.    Zimmerman,    278 
Zirkle    v.    l-eonard,    487 


INDEX. 

(References  are  to  sections.) 


ABATEMENT  (of  legacy),  definition,  771,  747 

where  order  of  abatement  directed  by  testator,  7/1    ^_ 
order  of  abatement  where  no  provision  by  testator,  7/2-/78 
residuary  legacies,  772 
general  legacies,  773 
demonstrative  legacies,  774 
division  of  fund,  774 
specific  legacies,  775 

no  abatement  of  legacies  for  value,  763,  7/6 
ABANDONMENT  (of  legacy  or  devise),  effect  on  devolution,  744 

efl"ect  on  charge,  754 
ABATEMENT  of  contest  by  death  of  party,  325 
ABILITY,  degree  of,  requisite  to  make  will,  97 

to  transact  business  not  conclusive  of  testamentary  capacity,  9b 
but  is  inconsistent  with  idiocy,  100 
admissible  in  evidence  as  affecting  capacity,  397 
to  answer  questions  not  conclusive,  398 
ABOVE,  meaning  of,  474 
ABSENCE  of  subscribing  witness  from  probate  does  not  invalidate  will, 

373 
ABSOLUTE  passed  fee  at  common  law%  501 

ABSOLUTE  INTEREST  (in  personalty)  is  the  interest  prima  facie  created 
by  testament,  595  , 

created  by  words  that  would  create  a  tee-tail  m  realty,  &9o 
whether  created  by  power  of  disposition,  595 
ABSTRACT  QUESTIONS,  charge  upon,  not  reversible  error,  333 

equity  will  not  permit  suit  for  construction  upon,  806 
ABSTRACTER  (of  title)  may  testify  to  probate  and  contents  of  will  de- 
stroyed after  probate,  439 
ABSURD  WILL.    See  Injustice  of  Will 

ACCELERATION  of  payment  of  legacy  by  termination  of  life  estate,  802 
of  remainder  by  refusal  to  accept  life  estate,  737 
See  Legacies 
ACCEPTANCE  necessary  to  vesting  of  gift,  663 

of  devise,  when  constituting  election,  723  ,     .         _^  , 

of  devise,  when  fixing  personal  liability  for  charge  upon  devisee,  /o4 
of  devise  charged  with  legacy  gives  what  remedies  to  legatee,  /bl 
ACCRUAL  to  surviving  members  of  class,  550,  551 

of  income,  604 
ACCRUED  SHARES.    See  Accrual 
ACCUMULATIONS  valid  if  not  perpetuity,  638 
Thelluson's  will,  638 
statutory  rule,  where  in  force,  638 
for  charitable  purposes,  642 
during  life  estate,  to  whom  payable,  605 
trust  for,  when  valid,  623  1077 


1078  INDEX. 

(References  are  to  sections.) 

ACKNOWLEDGMENT  of  will  as  deed  does  not  invalidate,  44 

of  signature  by  testator  to  witness  a  substitute  for  signing  in  pres- 
ence, 215 

but  not  of  signature  by  witness  to  testator,  215 

of  will  before  magistrate  equivalent  to  one  witness,  217 

of  signature  by  other  than  testator,  how  made,  215 

of  signature  not  substitute  for  publication,  228 
ACQUAINTANCE  may  express  opinion  of  sanity  if  he  testifies  as  to  facts 

on   which   opinion   is   based,   390 
ACQUIESCENCE  in  statements  of  others  may  be  good  rogatio  testiin,  237 

of  testator  in  statements  of  others  may  be  good  acknowledgment  or 

publication,  226 
ACRE,  gife  of,  void  for  uncertainty,  488 
ACREAGE,  when  gift  by,  passes  estate  in  common,  588 
ACTION.     Contest  not  civil  action,  323. 
See  Contest. 

conditions  restraining  beneficiary   from  bringing,  680,   683 

to  construe  will,  806,  817 

See  Construction,  Suit  to  Obtain. 
ACTIVE  SERVICE  defined,  233 

ACTIVE  USES,  614 

See  Trusts. 
ADDING  WORDS,  by  parol,  168,  810,  820 
by  construction.  473,  676 
after  execution  by,  testator,  299 
by  legatee,  302 
by  stranger,   301 
ADDITIONAL  LEGACIES,  798-800 

See  Cumulative  and  Substitutional  Legacies. 

ADEMPTION,   definition,   779 

is   not   revocation.   279 

by  sale  of  chattel  bequeathed,  780 

no  ademption  by  slight  change  in  form,  781 

distinguished   from   revocation,   781 
from  satisfaction 

applying   to    realty,    782 

by  compensation,  783,  784 

by  testator  in  loco  parentis,  783 

by  testator  not  in  loco  parentis,  784 

by  what  gifts  eflected.  785 

distinguished  from  advancement,  786 

what  is  not  ademption  of  release  of  debt,  501 
ADJUDICATION.      Order    admitting   will    to   probate    is    adjudication   of 

necessary  facts,   313 
ADMINISTRATION.       See  Probate. 

right  of  person  entitled  to,  to  contest,  325 

ADMINISTRATION  EXPENSES,  whether  debts,   602 

ADMINISTRATOR,  person  entitled  to  be,  as  next  of  kin,  may  contest  will, 
325. 
but  public  administrator  can  not,  325 
included   under   "Representative,"   533 
of  beneficiary  under  will  may  sue  for  construction,  808 

ADMISSIONS.       See  Spoliated  Will,  Evidence. 

ADOPTED  CHILD,  not  "issue"  to  prevent  lapse,  526 
whether  causing  revocation,  290 


INDEX.  ^^'^^ 


(References  are  to  sections.) 
ADOPTION    (of  child)    is  consideration  for  contract  to  devise,  72 

whether  part  of  performance,   t5^ 

what  is  breach  of  contract  for,   iV  .  ,  4-     ^„A 

ADULTERINE   BASTARD,   legitimated  by  intermarriage  of  parents  and 

andTlfuf  included  under  "Heirs  of  the  Body,"  520 
adulter"  if  consideration   for   contract  to  make  a  will,  vitiates  con- 
mi's  taken 'belief  in  existence  of,  when  not  insane  delusion,  106,  107 

gift  to  one  living  in,  with  testator,  411 
ADVANCEMENTS,  definition,  788 

crenerally  merged  in  will,  78b 

constitutes  ademption  if  made  after  will,   i86 

specifically  provided  for  by  te^stator,  78/ 

what  gifts  are  advancements,  '88 

when  evidence  of,   is   inadmissible,   38b 
"ADVANCES,"  meaning  of,  787    . 
ADVICE,  whether  words  of,  create  trust,  611 
"ADVISE,"  whether  creating  trust,  611 
ADVISORY   when  verdict  of  jury  is,  331,  333 

1?FEC1T0N  of  testator  for  beneficiary  important  as  affecting  justice  of 
will  in  undue  influence,  426,  427 
MSirS  t;SJ^'Sissible  to  show  affection  or  lack  of  it, 

AFFIDAVITS    (of  subscribing  witnesses)    used  at  probate,  320 

whether  admissible  on  contest,  367 
AFFINITY   relative  by,  not  included  under  name  of  class   531    538 

nfphew  by  affinit/not  included  in  gift  to  nephew.  531,  538 
"AFrER.'"  Gift  of  property  "after"  payment,  when  amounting  to  charge. 

after 'payment   of   debts,   whether   charge,    764 
when  Rebutting  presumption  of  satisfaction,   -0. 
AFTER-ACQUIRED  REALTY  not  devisable  at  common  law,  142,  489 

^but-iSht^pass^tVtUieation  after  realty  was  acquired,  309 
made  devisable  by  statute,  142,  48J 
statute  not  retroactive.  489 

classes   of   statutes,   489  o-eneral  gift,  489 

statutes  making  after-acquired  f^^tyPass  by  general  g 
statutes  making  it  pass  only  when  intention  clea  , 
AFTER-BORN,  vested  remainder  opening  to  let  m,  bbl 
AGE  (of  legatee)  effect  on  payment  of  legacy,  618 

^(StsTatirnraW'anced  on  testamentary  capacity,  102 
^^™  irS^Snt' dl^^f  beLficiary,  presumption  of  undue  influence,  414 
AGENT,  will  in  favor  of.     See  Business  Relation. 
AGREEMENT  to  make  will.     See  Contract  to  make  Will. 
as  to  probate  and  contest  of  will,  340 


1080  INDEX. 

(References  are  to  sections.) 

ALIBI,  evidence  of,  admissible  to  disprove  execution,  379 
ALIEN.     Devise  of  realty  to  alien  at  common  law,  150 

bequest  of   personalty   to   alien   at   common   law,    150 

devises  and  bequests  to  aliens  by  modern  statutes,   151 

Iowa  Rule,  151 

New  York  Rule,   151 

can  not  contest,  if  not  qualified  to  inherit,  325 

non-resident,  included  in  heirs,  512 
ALIENAGE  as  affecting  testamentary  capacity,  87.  . 

ALIENATION,   absolute   power   of,   when   inconsistent  with   mere  life  es- 
tate,  572 
ALIENATION,  RESTRAINT  ON,  in  general,  G25 

is  not  concerned  with  time  of  vesting,  02G 

is  not  made  valid  by  possibility  of  future  legislation,  62G 

validity   of   restranits   on,    634,    G35 

rule  against  alienation  extended  to  prevent  iierpetuities,  G35 

what  classes  of  jJi'operty  included,  G35 

what  gifts  violate  rule,  G35,  G36 

term  of  years,  violation  of  rule,  G36 

partial  validity  of  restraint  for  a  term,  636 

condition  in  total  restraint  of  alienation  invalid,  G8i 

validity  of  conditions  in  partial  restraint  of  alienation,  684 
ALIMONY,  gift  for,  not  "provision,"  293 

judgment  for,  does  not  operate  as  revocation  of  gift  to  wife,  609 
"ALL  and  every"  children,  gift  to,  not  in  'common,  589 
ALLOWANCE  of  widow,  affected  by  election,  734 
"ALSO,"  efi'ect  of,  414 
ALTERATION  in  circumstances  as  revocation,  280-286 

in  estate  as   revocation,  278,   279 

SUBSTANTIVE  LAW. 

ALTERATION  OF  WILL,   definition,  298 

ineffective  attempt  at,  is  not  revocation,  260 

before  execution  valid,   but  can   not  show  testator's   intention  to  ex- 
clude child,  298 
certificate  of,  in  attestation  clause,  433 
power  of  testator  to  alter  will,  297 
effect  of  alteration,  299 
by  other  than  testator,  300,  302.     See  Spoliation. 

EVIDENCE   OF  ALTERATION. 

extrinsic  evidence  of  date  of,   433 

burden  of  proof  as  to  alteration,  431 

New  York  Rule,  432 

presumptions,   if  will  in  custody  of  testator,   alteration  presumed  to 

have  been  made  after  execution,  by  testator,  432 
if  will  not  in  custody  of  testator,  no  presumption  that  testator  made 
alterations,  432 
ALTERNATIVE  CONTINGENCY,  674 

See   Conditions. 
ALTERNATIVE  GIFTS,     See  Alternath^  Provision. 

ALTERNATIVE  PROVISION,  invalidity  of,  as  a  perpetuity,  docs  not  in- 
validate entire  will,  630 

AMANUENSIS,  signature  of  testator  by,  174 
signatui-e  of  witness  by,  220 

AMBIGUITIES,  patent  and  latent,  distinction  once  insisted  on,  823 
ignored  on  sound  principle  at  modern  law,  823 


INDEX.  l-OSl 

(References  are  to  sections.) 

AMBIGUITY  IN  WILL,  817,  818,  819 

whether  necessary  for  admission  of  extrinsic  evidence,   81/,  818,  81J, 
820. 
A]\IBULATORY,  will  is  essentially,  49,  50 
"AMONG,"  calls  for  per  capita  division,  554 
AMOUNT   (of  gift),  uncertainty  as  to,  does  not  make  interest  contingent, 

660 
AMUSEMENT,  gift  for,  not  valid  charity,  654 

ANCESTOR.     Gift  to  "heir"  in  life  of  ancestor  means  "children"  or  "hen- 
apparent,"  514  -■■,  i^rOQ 

devise  by  ancestor  to  heir  treated  as  descent,  5»J 
ANIMALS,  whether  given  by  bequest  of  stock,  497 
ANCILLARY  PROBATE,  315 
"AND"  construed  "or,"  473 
ANGLO-SAXON  WILL,  8 

ANIMUS  ATTEST ANDI,  necessary  in  execution,  217 
ANIMUS  MANENDI,  in  questions  of  domicile,  27,  32 
ANIMUS  NUNCUPANDI  necessary  in  nuncupative  will,  236 
ANIMUS  REVOCUNDI  necessary  to  revocation  by  act  on  instrument,  256 
ANIMUS  TESTANDI  defined,  44 

Tint  dpnendent  on  use  of  word  "will,'  44 

preveX  hislrument  from  taking  effect  till  death  of  testator,  49 

necessary  at  execution,  180 

absence  of,   invalidates  will,   173,   175 

lacking  where  undue  influence,   126 

necessary  in  nuncupative  wills,  236 

evidence  of  animus  testandi,  380 

See  ExECX^TioN,  Evidence  of. 
presumed  from  execution,  47 
ANNUAL  PAYMENT  of  income  is  presumed,  600 
ANNUITY,  definition,  607 

distinguished  from  gift  of  income,  607 
gift  of  annuity  out  of  income,  607 
duration,  608 
apportionment,  609 
whether  cnargecl  on  realty,  758 
from  what  time  computed,  8u3 
ANTE-NUPTIAL  CONTRACT,  effect  of,  on  capacity  of  femme-covert.  91,  JZ 
prevents  wife  from  claiming  against  will,  281 
prevents  widow  from  contesting,  325 

bequest  in  lieu  of,  creates  case  for  election,   /I/  ,  ,      «o. 

ANTICIPATION  (restraint  upon)  of  married  woman's  separate  estate,  624 

"ANY"  read  as  "all,"  473  •,      n  j-      p-p 

gift  over  if  "any"  of  several  devisees  should  die,  b/b 

ANSWER  in  contest,  329 

APOPLEXY  does  not  necessarily  destroy  testamentary  capacity,   116,  384 

APPEAL,  contest  is  not,  323 

but  is  in  nature  of,  323 

from   judgment   in   contest,   337,   338 

from  decree  in  construction  suit,  812 
APPENDANT  POWERS,  hoAV  created,  468,  689,  695 

what  powers  are  not  appendant,   690,  691.     See  Powers. 
APPOINTEES,  when  not  affected  by  failure  to  exercise  power,  579 


1082  INDEX. 

(References  are  to  sections.) 

APPOINTMENT,  power  of,  failure  to  exercise  does  not  defeat  equitable 
remainder,  579 
of  power,  what  is  a  valid,  698 
APPORTIONMENT  of  appreciation  of  fund,  602 

of  income  on  death  of  beneficiary,  606 

of  annuities,  609 
APPOSITE,  signature  opposite  end  of  will,  187 
APPOSITIVE  use  of  "heir,"  556 
APPRECIATION  of  securities,  602 
APPURTENANCES.      See  Realty. 

ARBITRATION,  whether  contest  can  be  submitted  to,  346 
AREA,  gift  of,  void  for  uncertainty,  488 
ARREARS  of  annuities  payable  out  of  principal  if  income  deficient,  607, 

803 
ARRANGEMENT    of    residuary    clause,    507 
ART,  gift  to  promote  study  of,  is  charity,  645 
ASCENDANTS  not  included  in  descendants,  527 
"AS  HEREINAFTER  PROVIDED"  treated  as  surplusage,  689 
ASSENT   to   devise   of   homestead,    138 
ASSESSMENTS  not  "taxes,"  602 

but  are  "repairs  and  improvements,"  602 
ASSETS,  762,  766. 

See  Debts. 
ASSIGNEE,  of  beneficiary,  whether,  can  sue  for    construction,  808 
ASSIGNMENT    of  chose  in  action,  when  testamentary,  56 

where   a  will   good   as   assignment  of   policy,    136 
ASSIGNS  does  not  affect  rule  as  to  lapse,  739,  740 

and  successors  of  trustees,  extent  to  which  they  may  exercise  powers, 
739 

of  donees,  of  powers,  692 
ASTERISKS,  incorporation  by,  164 

ASTRONOMICAL  OBSERVATORY  is  educational  charity,  646 
ASSUMPSIT  lies  for  breach  of  contract  to  make  a  will,  78 

lies  for  legacy,  when,  802,  803 
ASSURANCE.     See  Insurance,   Fire  Insurance,  Life  Insurance. 
ASYLUMS,  gifts  to,  are  charities,  648 

"AT  MY  DECEASE,"  gift  to  those  living  at,  fixes  class  then,  545 
ATTACHMENT,  contingent  remainder  not  subject  to,  663 
ATTAINDER,  effect  on  testamentary  capacity,  84 
ATTESTATION,  188,  224 

See  Extrinsic  Elements. 

what  is  subject  of,  201-208 

whether  attestation  requires  publication,  228 
ATTESTATION  CLAUSE,  signature  above,  is  at  end,   183 

not  necessary,  223 

valuable  as  evidence,  223 

if  unsigned,  does  not  invalidate  holographic  will,  230 

certificate  of  alteration,  433 
ATTESTING  WITNESS  attests  capacity  of  testator,  207 

must  see  testator  sign  or  hear  him  acknowledge  signature,  203-207 

must  sign  in  presence  of  testator,  209-214 

can   not   validate   will   by   acknowledging   his   signature   not   made   in 
presence  of  testator,  215 


INDEX.  1083 

(References  are  to  sections.) 

ATTESTING  WITNESS— Continued . 

simultaneous   presence   not  necessary,   216 

must  sign  animo  attestandi,  217 

at  request  of  testator,  218 

form  of  signature,  219,  220 

validity  of  signature  by  other,  220 

place  of  signature,  221 

necessity    of    publication    before,    225-228 

competency   of,    191-200 

See  Competency. 
competency  of  witnesses  to  nuncupative  will,  238 
validity  of  gift  to,   196 
may  sign  will  for  testator,   177 

if  competent  at  execution  is  competent  on  contest,  363 
weight  given  to  evidence  of  ,necessity  of  calling,  366,  367 
absence  of,  does  not  invalidate  will,  373 
nor  death,  373 
nor  lack  of  memory,  372 
nor  denial  of  facts  of  execution,  374 
may  give  opinion  as  to  insanity  of  testator,  388 
may  testify  to  absence  of  undue  influence,  429 
ATTORNEY,  appointment  of,  to  settle  estate,  not  will,  40 

statements  of,  may  serve  as  acknowledgment  or  publication,  226 

when  statements  of,  are  error,  333 

can  not  consent  to  verdict  unsupported  by  evidence  in  contest,  346 

can   not   testify   to   confidential   communications,    364 

unless   not   professional,    364 

or  unless  subscribing  witness,  365 

presumption   arises   from   character  of  attorney  who   supervises   exe- 

tion,   375 
drafting  will  by,  413 
where  attorney  is  executor,  413 
where  attorney  is  beneficiary,  413,  414 
of  beneficiary,  will  drawn  by,  414,  415 

authority  to  attorneys  in  management  of  estate  is  not  trust,  614 
ATTORNEY  IN  FACT  can  act  for  donee  of  power,  692 
ATTORNEY  FEES  in  probate  and  contest,  345 

in  construction  suits,  813 
ATTORNEY  GENERAL  represents  the  state  in  charitable  trusts,  655 
AUTRE  VIE,  estate  per,  570 
AUTHORITIES,  value  of,  in  construction,  459 


B 

BAD  GRAIVIMAR  may  be  ignored  if  intention  manifest,  471 

BALANCE  of  specific  fund  held   specific,  767 

"BALAJ^CE"  equivalent  to  residuum,   506 

BANISHMENT  of  husband  as  affecting  testamentary  capacity  of  wife,  89 

BANK,  when  deposit  in,  passes  as  money,  496 

BANK-BOOK,   when  assignment  of    held  will,   56 

BANK  NOTES.    See  Money. 

BANHv  STOCK.     See  Stock. 

BANKER,  gift  of  money  passes  money  deposited  with,  when.  496 

order  on,  when  testamentary,  56 
BANKRUPTCY  of  beneficiary  accelerates  payment  of  legacy,  802 


1084  INDEX. 

(References  are  to  sectious.) 

BAKE  TRUSTEE,    See  Trusts. 

"BARN"  does  not  include  buggy-house,  494 

BASE  FEE.     See  Conditions,  Issue. 

BASTARDS.     See  Illegitimates. 

BEING,  child  in.     See  En  Ventre  sa  Mere. 

gift  to  those  in  being  at  testator's  death  not  perpetuity,  631 
BELIEF  of  witnesses  not  substitute  for  acknowledgment,  205 
BENEFICIARY,   law   controlling  as  to   capacity   of,   36 

not  exerting  influence,  129 

may  be  identified  by  unincorporated  document,  169 

may  sign  will   for  testator,   177 

are  not  competent  witnesses,   193,   194 

spoliation  by,   avoids   interest,   302 

may  propound  will  for  probate,  317 

can  not  contest  where  not  disinherited  in  part,  325 

error  by  court  in  indicating  beneficiaries  tq  jury,  reversible,  385 

will  drawn  by,  who  is  relation  of  testator,  undue  influence  presumed, 
409 

will  drawn  by,  void  at  Roman  law,  414 

presumption  of  undue  influence  where  will  is  drawn  by,  414 

competent  to  prove  handwriting  of  testator,  446 

how  designated,  where  gift  to  husband  and  wufe,  511 

to  "heirs,"   512 

who  may  be  beneficiaries  in  charitable  gifts,  643,  644 

in   charitable   trusts,    643 

uncertainty  of  beneficiary  allowed,  643 

in  gifts  of  income,  604 

restriction  of,  under  power,   690 

whether  beneficiary  can  sue  to  construe,  808 
BENEFIT,  whether  devisee  can  take  for  his  own,  685 
BENEFIT  CERTIFICATE,  when  assignment  of,  held  will,  56 
BENEVOLENT  PURPOSE,  not  neciessarily  limited  to  charitable,  654 

BEQUEATH,  definition,  2 

prima  facie  applies  to  personalty,  473 

but  may  be  used  of  realty,  473 
BEQUEATHABLE,  what  is.    See  Property. 
BEQUEST,  definition,  2 
"BETWEEN"  read  as  if  "through,"  473 

requires  per  capita  division,  554 

heirs   of   two   or   more,   558 

relatives  of  two  or  more,  558 

BIGAMY  a  material  circumstance  where  causing  will,  427 

BILL   (in  equity)   necessary  in  construction  suit,  810 

BILL  OF  EXCHANGE,  whether  testamentary,  55 

BILL  OF  SALE,  when  testamentary,  55 

BIRTH   (of  issue),  condition  as  to,  677 

what  is  subsequent  birth  of  child.  290 
revocation  of  will  by,  282,  28V,  296 

BISHOP,  devise  to,  not  restraint  on  alienation, 

15LENDING  of  realty  and  personalty  in  residuary  clause,  encct  of.  T") 
how  done,   757 

BLANKS,   effect   of,   in   will,    184,    185 

in   purpose,   prevents  charitable  gift,   654 


,  INDEX.  1<^SS 

(References  are  to  sections.) 

BLIND,   testamentary  capacity   of,   117 

Hcc  Testamentary  Capacity. 

what  is  presence  of,  214  _ 

whether  will  must  be  read  over  to,  4/,  ^8^ 

fraud  upon,  by  pretended  ix-v'ocation,  2o5 
BLOOD  RELATIONS,     iicc  Relations,  Relatres. 
BON  \  FIDE  PURCHASER,  under  power,  takes  good  title,  696 

when  not  bound  by  equitable  election,    /I/. 
BOND  not  required  of  life  tenant  of  personalty  who  has  power  of  dispo- 
sition,   5i)8  1    rua 

whether  required  of  life  tenant  in  general,  51)8 

^"^heuSfgifl  orspecinc.  genera,  or  ae.non.tvative,  707-770 

BONUS,  whether  income  or  principal,  602 

BOOK  DEBTS.    See  Debts. 

BOOK  ENTRIES,  of   advancements   to  beneficiary,    (87 

are  conclusive,  788 
BOOKS,  whether  furniture  or  not    492 

gift  to  publish  religious,  is  charity,  b4J 

BORN,  meaning  of,  545 

See  Class,  En  Ventre  sa  Mere. 

BOUNTY,  whether  devisable,  146 

BREACH  of  contract,  to  devise,  76  _ 

of  contract  to  make  a  will,  when  it  exists,   <9 
of  condition.     -S'ec  Condition  ,i„,,;«,hip    147 

interest  on  breach  of  condition,  whether  devisable,   147 
devolution  of,  507,  582 

BREACH  OF  TRUST.     See  Trusts,  Protection  of  Remainderman. 

BROTHER   of   executor   competent,    199 
"BROTHERS"   may   include   in   deed  at   execution,   530 

includes  half-blood,  5.30 

when  not  indicating  class,  543 

BUGGY  HOUSE  is  not  a  barn,  494 
BUILDING,  gift  of,  for  charity,  646,  647 
BURDEN  OF  PROOF,  definitions,  369 
in  contest  generally,  330 
ambiguous  term,  369 
whether  it  shifts,  369,  385,  400 
as  to  execution,  370 
as  to  mental  capacity,  382 
as  to  undue  influence,  405 
where  beneficiary  draws  will,  414 
as  to  revocation,  448 
revocation    bv    lost    will,    45.5 
as  to  spoliation,  431,  434,  449 
in  alteration  and  spoliation,  431 
in  lost  and  spoliated  wills,  434 
in  destroyed  wills,  449 
in  holographic   wills,  446 
in  nuncupative  wills,  447 
BURIAL,   expression  of  wish   concerning,  not  will,  40 
BURIAL  GROUND,  devise  for,  488 
BURNING,  revocation  by,  247 


1086 


INDEX. 


(References  are  to  sections.) 

BUSINESS.     Ability  to   transact   business   as   test  for  testamentary   ca- 
pacity, 96 
inconsistent  with  idiocy,  100 
admissible  in  evidence  as  affecting  capacity,  397 
share  in,  passes  as  credits,  498 
BUSINESS   MANAGER,   gift   to,   raises   no   presumption   of   undue   iuflu- 

ence,  416 
BUSINESS  RELATIONS   between   testator  and   beneficiary   raise  no  pre- 
sumption of  undue  influence,  416 


CALCULATION.     Erroneous  calculation  of  amount,  when  ignored,  797 
when  binding  on  beneficiary,  788 

CANCELLATION  as  revocation,  249 
(S'ee  Revocation. 

"CANCELLED,"  whether  writing  word  "cancelled"  on  will  is  a  cancella- 
tion, 249 

CANCELLING,   revocation   by,   249 

presumption  of.     /S'ee  Presumption. 

CAPACITY  to  make  will.     See  Testamentart  Capacity, 
law  controlling  capacity  of  beneficiary  to  take,  36 
to  commit  crime,  not  test  of  testamentary  capacity,  96 
to  make  contract,  not  test  of  testamentary  capacity,  96 
of  testator  is  attested  by  subscribing  witnesses,  208 
of  devise,  not  determined  by  order  of  probate,  341 
gift  void  for  want  of  capacity  of  beneficiary,  745 

CAPITA  PER.     See  Per  Capita  and  Per  Stirpes. 

CAPITAL,  when  applicable  to  annuity  if  income  deficient,  607 

CARRIAGE-HOUSE  is  not  a  barn,  494 

CASES.     Value  of  adjudicated  cases  in  construction,  459 

CASH,  gift  of.    See  Money. 

CATHOLIC    (Roman),  condition  as  to  professing  religion,  682 

CELIBACY,  condition  requiring,  when  void,  681 

CEMETERIES,  gift  for  public,  is  charity,  651 
but  not  for  private,  651 
except  by  special  statute,  651 

CERTAINTY.     Names  of  members  of  class  added  for  certainty,  543 
of  beneficiary,  610 
of  purpose  of  trust,  610 

CERTIFICATE  of  notary  in  Louisiana  law  for  nuncupative  will,  241,  242 

CESTUI  QUE  TRUST.     Extent  of  interest,  662 
power   of,   over   estate,    622 
when  allowed  to  sue  for  construction,  808 

CHAMPERTY,  rule  against,  effect  on  devise  of  disseised  realty,  144 

CHANGi;  OF  DOMICILE,  effect  on  will,  32 

CHANGE  OF  INTENTION,  evidence  of,  in  undue  influence,  422 

CHANGE  OF  LAW,  effect  on  evolution  of  property,  467 

CHANGING  WORDS  by  construction,  when  permitted,  473,  676 
by  parol,  not  allowed,  816 

See   Extrinsic   Evidence. 

CHAPEL,  gift  for  private,  649 


INDEX.  1087 

(References  are  to  sections.) 

CHARACTER   of  attorney   who    supervises  execution,   admissible   in   evi- 
dence, 375 

of  testator  admissible  on  question  of  spoliation,  445 
of  persons   interested   in    destroying   will,   445 

CHARGE   (of  debts)   does  not  include  commission  of  executor,  602 
on  realty,     iice  Debts. 

CHARGE    (of  court),  form  of  charge  as  to  testamentary  capacity,  97 

in  contest  of  lost  will,   353 

inferences  of  fact  must  not  be  charged  as  law,  414 
CHARGE   ( of  legacies ) .     See  also  Legacies. 

essentials   of,    333 

show  intention  to  create  fee,  561 

of  support  of  others  does  not  reduce  estate  to  one  pur  auter  ril,  570, 
573 

for  support  determines  duration  of  indefinite  devise,  573 

for  support,  whether  trust,  613 

distinguished  from  condition,  751,  752 

of  legacy,  how  enforced,  760 

of  annuity,  effect  on  payment  of  legacies,  803 

interest  on  legacies  charged  on  property,  804 

of  taxes  on  property,  602 
CHARITABLE  DEVISE.     See  Charity. 
CHARITABLE  TRUSTS.     See  Cy  Pees. 

CHARITY. 

In  general — 

what  time  before  testator,  will  in  favor  of  charity,  must  be  exe- 
cuted, 25 
what  amount  can  be  given  to  charity,  25 
what  law  co'ntrols  in  gift  to,  31 
definition,  639 

equivalent  to  eleemosynary,  639 

rule  against  perpetuities  subject  to,  as  to  time  of  vesting,  640 
gift   to   non-existent    corporation,    640 
not  subject  to  rule  against  restraint  on  alienation,  641 
gift  over  from  one  charity  to  another,  640 
Beneficiaries — 

who  may  be,   643 
need  not  be  certain,  643 
discretionary  power  of  executor,  643 
unincorporated,   voluntary  association,   643 
public  corporation,  644 
private  corporation,  644 
Charitable  purposes — 
what  are — 

education,   645 

public  libraries,  646 

astronomical  observatory,  646 

aid  of  poor  and  destitute,  647 

lodging  houses,  647 

hospitals  and  asylums,  648 

religion,  649 

masses  and  prayers,  650 

cemeteries,  651 

parks,  651 

condition  of  negroes,  improvement  of,  652 

change  in  legislation.  652 


1088  INDEX. 

(References  are  to  sections.) 

CHARITY— Continued. 

purposes  not   charitable — 
sport,    t)54 
hospitality,  654 
See  Cy  Pkes. 
CHAKTER.     Uift  during  extension  of  charter  is  a  perpetuity  GS6 
CHATTELS.    See  Peksonalty. 
CHATTELS,  REAL.    See  Leaseholds. 
CHECK,  bank  deposit,  subject  to  passes  as  "money,"  490 
CHILD.    And  see  also  Children. 

power  of  testator  to  disinherit,  23-25. 

expression  of  wish  for  care  of,  not  will,  46 

surrender    of,    consideration    for    contract    to    devise,    72 

birth  of,  did  not  revoke  will  of  father  at  common  law,  282,  287 

effect  of  birth  of  child  at  modern  statute,  287-296 

where  parent  is  childless  when  will  is  made,  287 

where  parent  is  not  childless  when  will  is  made,  288 

omission    of    child    by    mistake,    121,    288,    291 

"having  no  child,"  meaning  of,  289 

"subsequent   birth"   of   child,   meaning   of,   290 

pretermitted  child,  rights  of,  by  statute,  291,  296 

not  presumed  to  exert  undue  influence  over  parent.  409 

includes  children,  522 

does  not  inchide  grandchild,  522 

unless    by    context,    524 

does   not   include   step-children,   522 

nor  illegitimates,  522 

may  include  illegitimates  by  context,  525 

restricted  by  context  to  "sons,"  526 

en  ventre  sa  mere,  a  member  of  class,  545 

when  vested  remainder  opens  to  let  in  after-born,  661 

gift    over    on    death    without    "leaving,"    676 
CHILD    (en  ventre  sa  mere)    as  affecting  revocation,  289 

is  a  "child,"  521 

is  member  of  class,  545 

gift  to,  as  affected  by  rule  against  perpetuity,  628 

is  person  in  being,  633 
CHILDREN.    .S'cp  also  Child. 

gift  to,  is  not  naming  of  after-born  child,  293 

when   equivalent  to  heirs,   517 

definition,   522 

does  not  include  step-children,  522 

nor  illegitimates,  522 

by  context  may  be  synoymous  with  issue,  524 

describing  class,  541 

gift  to,  of  two  or  more,  558 

when  words  of  limitation,  561 

prima  facie  a  word  of  purchase,  561 

when  gift  to  A  and  his  children  creates  a  fee-tail.     Rule  in  Wik^s 

Case,  567 

CHILD-B'EARING,  effect  upon  meaning  of  "heir,"  of  passing  age  r  ",  515 
passing  age  of,  not  affecting  rule  against  perpetuities,  629 
effect  of  passing  age  of,  on  condition,  677 
effect  of  passing  age  of,  802 

CHINA  included  in  furniture,  492 

CHURCH,  gift  to  poor  of,  is  charity,  647 
gift  for  chtirch  purposes  is  charity,  649 


INDEX.  1089 

(References  are  to  sections.) 

CHOSES  IN  ACTION.    See  Personalty,  Notes,  Stock. 
ClRCUMSTANEiJ,  alteration  in,  as  revocation,  280,  286 
CIKCUMSTANTIAL  evidence  of  undue  influence  is,  404 
OITIZENSHir.     Diverse  gives  U.  S.  courts  jurisdiction  in  will  cases,  807 
CITY,  gift  to,  154 

charitable  gift  to,  644 
CIVIL  ACTION,  contest  is  not,  323 
CIVIL  LAW.     See  Roman  Lavv^. 

CLAIMS,  condition  as  to  presenting,  against  estate  of  testator.  680 
CLASS,  gift  to  a,  defined,  540 

when  ascertained,  540,  546 

what    constitutes    gift    to,    541 

what  does  not  constitute  gift  to,  542 

gift  in  severalty  not  gift  to,  542 

effecting  of   naming  members  of,   543 

exclusion  from,  543 

when  ascertained,  545 

when  fixed  at  execution  of  will,  545 

prima  facie  fixed  at  death  of  testator,  545 

time  for   fixing,  given  by  will,   545 

when  fixed  after  death  of  testator,  546 

child,  en  ventre  sa  mere,  a  member  of,  545 

efl'ect  of  postponing  time  of  distribution,  gift  to   "heir,"  547 

gift  to  others,   548 

when  fixed  at  time  of  vesting,  549 

lapse  in  gift  to  common  law  rule,   550 

lapse  in  gift  to  modern  statutory  rule,  where  .lot  applying,  551 
where  appljing.  551 

context   shows   whether   lapse   is   intended,   551 

whether  gift  to,  vested  or  contingent,  656 

efiect  upon  vesting  of  gift  to  class  to  be  determined  in  the  future,  656 

restriction  to  class  of  gift  under  power,  690 

CLASSES,  of  mentally  afflicted,  99 

CLAUSE  OF  ATTESTATION.     See  Attestation  Clause 
CLAUSE  OF  REVOCATION.     See  Revocation  Clause. 
CLEAR  LANGUAGE  necessary  to  cut  fee  down  to  less  estate,  574 

CLERGYMAN,  gift  to.     See  Undue  Influence — Pkesumption. 
condition  as  to  costume  of,  is  valid,  649 

CLOSE.     See  Realty. 

CLOSET,  gift  of  articles  in,  494 

COAL   included   in   "household  goods,"   493 

CODE  NAPOLEON  as  affecting  American  Law  of  Wills,  20 

CODICIL,  defective,   does  not  revoke  will,  263 
valid,    republishes    will,    307 
can  not  be  probated  without  will,  314 
construed  with  will.  462,  470 

revoking  disposition   in  will   causes  intestacy,   466 
does  not  revoke  will  beyond  absolute  inconsistency,  758 

COERCION,  eftect  on  will,   133 
See  Duress. 

COHABITATION.      Condition    to    prevent    cohabitation    of    husband    and 
wife  is  void.  681 
effect  of  unlawful  cohabitation  on  presumption  of  undue  influence,  411 


1090  INDEX. 

(References  are  to  sections.) 

COLLATERAL  ATTACK  upon  order  of  Probate,  313 

not  allowed  where  court  probates  will  away  from  county  seat,  315 

on  judgment  not  allowed,  339,  340 

on  decree  in  construction  suit,  808 
COLLATERAL  ISSUES  can  not  be  tried  in  contest,  330 
COLLATERAL  POWERS.     See  Powers. 
COLLATERALS  not  included  in  descendants,  527 
COLLEGE,  gift  to,  as  charity,  645 

COMMISSION  of  executor,  whether  included  in  charge  of  debts,  602 
COMMITTEE.     See  Guakdian,  Guardianship. 
COMMON,  gift  to  town  for,  686 
COMMON  DISASTER,  death  in,  740 
COMMON,  ESTATE  IN,  how  created,  588,  589 

gift,   "share   and   share   alike,"   589 

created  at  common  law  by  gift  to  two  or  more,  590 
COMMON  FORM  of  probate,  312 

COMMON,  INTEREST  IN,  distinguished  from  joint  interest,  579 
COMMON  LAW.     Court  will  take  notice  where  common  law  prevails,  41 
COMMON,  tenancy  in.    See  Common,  Estate  in. 
COMMON,  tenants  in.     See  Common,  Estate  in, 
COMMUNITIES  as  beneficiaries,  154 
COMMUNITY  PROPERTY,  testator  can  devise  only  his  share  of,  139 

election  between,  and  gift  by  will,  715 
COMPARISON  of  genuine  papers  admissible  to  show  handwriting,  378 
COMPENSATION.     See  Contribution. 

COMPETENCY  of  witnesses  in  action  on  contract  to  make  a  will,  81 
COMPETENCY   (of  subscribing  witness),  what  constitutes,  191 

of  beneficiary,   193-196 

of  spouse  of  beneficiary,  197,  198 

of  heir  of  beneficiary,  199 

of  probate  judge,  199 

of  executor,  199 

of  creditor,  199 

of  convict,  199 

of  husband  of  testatrix,  200 

to  what  extent  statutes  upon  competency  apply  in  Probate,   198 

of  witnesses   to   nuncupative   will,    238 

of  witnesses  at  Louisiana  law,   242 

of  witness  at  common  law,  3^0 

at  modern  statutes,   361,  365 

of  attesting  witness  at  execution  renders  him  competent  on  contest,  363 

of  beneficiary  to  prove  handwriting  of  test,  446 

of  beneficiaries  in  nuncupative  wills,  447 
COMPLETION   (of  will),  date  of,  25 

COMPROMISE,  agreements  as  to  contest  by  way  of  compromise,  346 
COMPl'TATION   (of  time)   to  determine  violation  of  rule  against  perpetu- 
ities, 626 
CONCUBINE,  gift  to,  where  void,  24 
CONCURRENT  WILLS,   66 

CONDITION,  PHYSICAL,  of  testator  important  in  undue  influence,   126 
428 

See  Undue  Influence — Evidence. 

CONDITIONS  important  as  showing  that  instrument  is  will,  53 
ali'ecting  part   of   will   preferred   to   one   affecting   whole,    64 


INDEX.  1091 

(References  are  to  sections.) 

CONDITIONS— Continued. 

in  restraint  of  second  marriage  of  widow,  466 

gifts  deieated  by,  pass  under  residuary  clause,  507 

subsequent,   fee   on,   563 

in  restraint  of  second  marriages,  valid,  571 

remainder   over  on   breach   of,   582 

when  "dying  without  issue"  treated  as,  593,  594 

gift  of  life  interest  upon  happening  of,  does  not  show  intent  to  create 
that  interest  in  any  event,   597 

residence  at  specified  place  condition  of  receiving  support,  6U4 

as  to  costume  of  minister  is  valid,  649 

requiring  remaindermen  to  survive  till  determination  of  life  estate 
to  take,  creates  vested  interest,  062 

subsequent,  to  support,  effect  of  failure  of,  662 

subsequent,   vested    remainder   on,    662 

"if  he  had  an  heir"  fulfilled  on  birth  of  heir,  663 

that  remainderman  survive  life  tenant,  whether  creating  vested  in- 
terest, 663 

upon   which   estate  vests,   664 

subsequent,    divesting   vested   legacy,    608 

classes,  672 

precedent  and  subsequent,   distinguished,  672 

condition   distinguished  from  motive,   6/3 

legatee  need  not  be  notified  of,  673 

trust   distinguished    from    condition,    673 

construction    of    conditions,    674 

double  condition,  674 

failure  of  condition  precedent,  675 

failure  of  condition  subsequent,  675 

"dying  without  issue"  or  "death  without  issue,"  as  condition,  676 

death  without  "leaving"  child,  676 

death  "under"  given  age  held  to  mean  death  under  age  without  issue, 
676 

gift  over,  if  "any"  if  several  devises  should  die,  676 

birth  of  issue,  677 

support  or  services,   678 

of  paying  for  realty  devised,  678 

reformation  of  beneficiary,  679 

presenting  claims  against  testator's  estate,  680 

restraint  of   first   marriage,   681 

restraint  of  second  marriage,  681 

partial    restraint    of    first    marriage,    681  • 

distinguished  from  limitation,  681 

enforced  where  condition  precedent,  681 

condition   requiring  divorce,   681 

religion — whether  condition  that  devisee  shall  profess  certain  religion, 
valid,  682 

preventing  contest  of  will  or  litigation  thereon,  (J83 

validity  of  conditions  in  restraint  of  contest  as  to  devises  and  lega- 
cies," 083 

repugnant  to  nature  of  estate  devised,  684 

in   restraint  of  alienation  of  fee,  684 

compared    with    limitation,    084 

compared  with  gift  of  life  estate  only,  084 

in  restraint  of  alienation  of  estate  less  than  fee,  084 

against  bankruptcy,  685 

gift  over  on  insolvency,  685 

as  to  use  of  property,  686 

against  murder  of  testator,   687 

as  to  exercise  of  power  of  sale,  090 

precedent,  when  consent  to  exercise  of  power  is.  603 


1092  INDEX. 

(References  are  to  sections.) 

CONDITIONS— Continued. 

distinguished  from  cliarge,  751,   752 

against  contest  does  not  forbid  construction  suit,  814 

wills  on.      /S'ee  Contingent  Wills. 
CONDITIONAL  FEE.     ^S'ee  Conditions,  Fee,  Fee-tail. 
CONDITIONAL  LIMITATION  on  marriage  or  remarriage,  4GG,  G81 

distinguished  from  condition,   681 
CONDITIONAL  REVOCATION,  263,  275-277 

See  Kevocation. 
CONDUCT  may  constitute  acknowledgment,  205 

of  testator  admissible  on  qixestion  of  capacity,  397 

of  beneficiaries  when  admissible  to  show  undue  influence,  426 

good,  of  beneflciary,  condition  precedent  to  payment  of  legacy,  679 

when  amounting  to  election,  720 

may  estop  from  denying  written  election,  7.32 
CONFIDENCE,  expressions  of,  as  creating  trust.  See  Precatory  Trust. 
•CONFIDING,"  whether  creating  trust.     See  Precatory  Trust. 
CONFIDENTIAL  COMMUNICATIONS  inadmissible  if  made  to  attorney, 
physician,  etc.,  who  is  not  subscribing  witness,  364 

testator   waives   disability   by   calling  upon   such   confidant  to   act   as 
subscribing  witness,  365 
CONFIDENTIAL  RELATIONS  between  testator  and  beneficiary  may  cre- 
ate presumption  of  undue  influence,  416 
CONFLICT  OF  LAW.     See  Law  Governing  Will. 

in  case  of  revocation,  454 
CONFIRMATION  (of  will).    /S'ee  Republication. 
CONFLICTING  WILLS,  effect  of,  as  revocation,  268,  269 

probate  of,  322 
CONJECTURE,  court  can  not  resort  to,  in  construction,  48,  745,  822 
CONSANGUINITY,  relations  by,  prima  facie  intended,  522,  529,  531 
CONSENT  of  husband  to  testament  of  wife,  89 

what  is  consent,  89 

to    marriage,    condition    requiring,    571 
CONSEQUENCES   of  will   must   not   be  misstated   by  court   to   jury,   333 

of  will  as  alfecting  mental  capacity  and  undue  influence,  642 
See  Injustice  of  Will. 
CONSIDERATION,  what  is,  for  contract  to  devise,  72 

legacies   upon,    776 
CONSOLIDATION  of  contest  proceedings,  323 
CONSTRUCTIVE  CONVERSION.     See  Conversion. 
CONSTRUCTIVE  TRUST.     See  Trust,  Resulting  Trust. 

CONSTRUCTION,  by  what  law  governed,  29 

prefers  condition  afl'ecting  part  of  will  to  one  affecting  whole,  64 

scope  of,  456 

defined,  457,  458 

value  of  precedent  in,  459 

compared   with   Rules   of   Property,   459 

not   means  of   altering  will,   460,   461 

strives  to  determine  intention  of  testator,  461 

can  not  prevent  injustice  of  will,  464 

against   partial    intestacy,    466,    475 

against  disinheritance,  467 

when  particular  residuary  clause  preferred,  467 

implication   by   recital,   468 

of  will   passing  both   realty   and  personalty,  469 

harmonizes  inconsistent  provisions  if  possible,  470 

not  affected  by  illiteracy  or  ignorance  of  testator,  471 

effect  of  context,   471,  473 

vested  interests  in  personalty  preferred  in  construction.  667 


INDEX.  1093 

(Rtfeyen^s  are  to  sections.) 

CONSTRUCTION— Ct^ntinued. 
of  conditions,  ST'i 

of  condiiioiis  in  partial  restraint  of  alienation,  G84,  688 
of   conditions   against   bankruptcy,   685 
of  coiiditicns  as  to  use  of  property,  iJ86 
of  powers,  690 
suit  to  obtain,  806-817 
when  suit  will  lie,  806 

wquity  will  determine  immediate  conduct  only,  806 
equity    will    not    determine    legal    rights,    80o 
except  in  quieting  will,  806 
what  court  has  jurisdiction,  807 
who  are  proper  parties,  808 

can  not  be  made  means  of  contest  or  reformation,  SO'J 
pleadings,    810 
notice,  811 
decree,  812 

on  whom  binding,  812 
costs,   813 
attorney    fees,   813 
estoppel,  814 
error,  815 
evidence   admissible   to   determine,   816,   823 

not  restricted   to   construction   suits,   816 

not  admissible  to  show  intention  direct,  816 

admissible  to  show  surrounding  facts,  817. 
See  also  ExTRmsic  Evidence. 
CONSTRUCTION  of  statutes  upon  spoliated  wills,  434 
CONSTRUCTIVE  DESTRUCTION  as  revocation,  252 
CONSUMABLE  ARTICLES  not  subject  to  life  interest,  596 
CONTEMPLATION.     Will  made  in  contemplation  of  marriage,  281 
CONTENTS    (of  will),  subscribing  witnesses  need  not  know,  227 
of  lost  will,   354 

of  spoliated  will,  how  proved,  440 
CONTENTS,  gift  of,   of  house,   chest,   etc.,   494 

CONTEST.     Omitted  children,  as  to  whom  will  is  void,  need  not  contest. 
295 
period  within  which  contest  may  be  brought,  321 

is  jurisdictional,  321 

but  decree  may  be  vacated  for  fraud  or  mistake,  321 

statute  does  not  apply  to  infants,  insane  persons,  etc.,  321 
whether  contest  necessary  if  inconsistent  wills  are  oflered  for  probate, 

322 
nature  of  contest,   323 

statutory   proceeding,   323 

is  not  appeal,  323 

nor  error,   323 

does  not  test  validity  of  specific  gift,   323 
parties  necessary  to  contest,   324 

who  may  contest,   325  ■    ' 

application  of  estoppel  to  contest,  320 

who  may  defend,  327 
pleadings,  328 

petition,    328 

form,   328 
issue  in  contest,  .329,  331 

whether  fixed  by  pleadings,   329 

whether  demurrer  available,  329 

whether  answer   necessarv,   329 


1094  INDEX. 

(References  are  to  sections.) 

CONTEST— Continued. 

procedure  at  trial,   330 

right  to  open  and  close,  330 

right   to   dismiss   contest,   330 

right  to  jury  purely  statutory,  331 

power  of  court,  332 

charge  of   court,   333 

reference   to   contested   will,    333 

must   not   usurp   functions   of  jury,   333 

what    evidence    supports   verdict,    334 

verdict,  form  of,  335 
judgment,    form    of,    335 

efiect   of  judgment,   335 

direct  attack   on   judgment   in   contest,   337 

appeal   from  judgment,   337,   338 

error   to  judgment,   338 

collateral   attack   on   judgment   not   allowed,   339,   340,   341 

except  where  court  had  no  jurisdiction,   341 

as  where  testator  is  alive,  341 

/S'ce    Judgment — Jurisdiction. 
power  of  court  over  costs,  344 

and  attorney   fees,   345 
contracts   concerning  contest,   346 
upheld    unless     fraudulent,     346 
condition   in   restraint  of,   C83 
what   is,   in   construing  condition   against,   683 
efiect  of  delay  on  account  of,  on   interest,  804 
can  not  be  had  in  construction  suit,  809 
condition  against,  does  not  forbid  construction  suit,  814 
CONTEXT,  modifying  meaning  of  "efTects,"  478 
effect  of,  on  gift  of  contents,  494 
may  pass   realty   or   chattels   as   "money,"   496 
when  prevents  interest  from  passing,  499 
may  extend  meaning  of  heirs.  514 

modifying    meaning    of    children,    grandchildren    and    great-grandchil- 
dren, 523,  524,  525 
effect  on  term  "issue,"  526 
limited  to  children,   526 
affecting  meaning  of  "family,"  528 
affecting  meaning  of  "relatives,"   529 

extends  meaning  of  "nephew  and  nieces"  to  grandnephew  and  grand- 
niece,  531 
modifies   meaning   of   cousin,   532 
affecting   use   of    "surviving,"    546 
affecting  time  of  fixing  assets  in  gift  to  "heirs."  547 
may  show  that  "death"  or  "dying  without  issue"  means  death  after 
testator,  676 

See  also  Construction. 
CONTINGENT  ESTATE.     See  Contingent  Interest. 
.CONTINGENT  GIFT.     See  Contingent  Interest,   Contingent  Will. 
CONTINGENT  INTEREST  is  devisable,  145 

disqualifies  beneficiary   thereof  as   attesting  witness,   194 

when  income  from  is  intestate  property,  466 

devolution  before  time  for  vesting,  466 

is  subject  to  rule  against  perpetuities,  628 

definition.    656 

distinguished  from  vested  interests,   657 

early  vesting  preferred  in  construction,  663 


INDEX.  1095 

(References  are  to  sections.) 

CONTINGENT   INTEREST— Continued, 
interest  in  realty. 

gilts  to  a  class,   656,   665 

Classes   of   contingencies,   664 

contingency  of  event,  664 

what  may  be  selected  as  contingency,  664 

contingency    of   person,    665 

created   by   gift   to   class,   665 
interests  in  personalty. 

possession,   66ii 

legatee  entitled  to  protection  of,  666 

vested  interests  preferred  in  construction,  667 

postponement    of    possession    for    intermediate    interest    creates 
vested  legacy,  668 

not  for  intermediate  interest  passes  vested  interest,  669 

unless   given   only   by   direction   to  pay   legacy,   669 

power  of  disposition,  does  not  create,   669 

early  vesting  of,   preferred,   670 

how  defeated,   671 
CONTINGENT  REMAINDER.     See  Contingent  Interest. 
CONTINGENT  WILLS.     Definition,  60 
includes   what  wills,   60 

does  not  include  conditions  affecting  part  of  will,  60 
validity   of   contingent   wills,    61 
examples    of    contingent    wills,    62-63 
are  void  on  breach  of  condition,  696 

contingency  distinguished  from  recital  of  motive,  62,  63 
partial  contingency  preferred  in  construction  to  total  contingency,  64 
CONTINUANCE  of  mental  condition  of  permanent  type  presumed,  384 
CONTRACT,   confused  with   wills,   54,   55 
to  make  a  will,  where  really  will,   55 
instrument  may  be  part  contract  and  part  will,  55 
by   beneficiary   with   testator    is    not    revocation,    244 
to  support  alleged  child  does  not  revoke  will  disinheriting  child,  266 
to  sell  realty,  effect  as  revocation,  279 
to  distribute  estate,  bars  contest,  326 
not  to   probate  will,   upheld,   346 
concerning  contest,   346 
upheld  if  not  fraudulent,   346 

land  contracted  to  be  purchased  passes  by  will,  482 
land  contracted  be  sold  passes  by  will,   482 
of  sale,  is  not  conversion  if  not  enforceable,  704 
antenuptial,  bequest   in  lieu  of  causes  election,  717 
acceptance  by  devisee  is  contract  to  pay  charge,   754 
(to  make  will),   law   controlling,   40 

will  made  in  pursuance  of,  is  revocable,  (59 

validity  of  contract,  70 

revocability  of  will,  make  in  pursuance  of  contract,  70 

necessity   of   all   elements   of   valid   contract,    71 

including  consideration,   72 

what   is  valid   consideration,   72 

certainty  of  terms,  73 

statute  of  frauds,  74 

part   performance,  what  is,   if  contract   to   devise,   75 

breach   of  contract,   76 

construction   of   contract,    77 

performance  of  contract,   77 

remedies  at  law  for  breach,   78 


1096  INDEX. 

(References  are  to   sections.) 

CONTRACT— Continued. 

remedies  in  equity,  79 

when  equity  will  grant  relief,   79 

election   of   remedies,   80 

evidence   of   contract,    81 

competency   of  witnesses   in  suit  on   contract   to   devise,  81 

parties   to   action,   82 

limitations,   when   statute  of,   runs,   83 

when  contract  does  not  adeem  devise,  780 
CONTRADICTION.     Extrinsic  evidence  not  available  for,  820 
CONTRIBUTION,   definition,    791 

does  not  exist  if  property  applied  to  debts  in  order  of  abatement,  791 

exists  of  property  taken   out  of  order   of   abatement,   792 

failure  of  title,  793 
CONTROL   of   husband,   whether   gift   free   from,   creates   separate   estate, 

624 
CONVENIENCE,   postponement   for,    is   not   perpetuity,    629,    637 

sale  for  convenience  of  estate  does  not  effect  conversion,  704 
CONVERSION.     Law  controlling  in,  34 

of  money  for  purchase  of  realty,  148 

converted  stock,  497 

gift  of  property  to  "heirs"  after,  515 

direction  to  convert  creates  power  of  sale,  690 

definition,    699 

how   directed,    699 

conversion  of  realty,   700-705 

effect  of   mandatory    general   power   of  sale,   700 

if  mandatory  limited  power,  701 

if   discretionary    power,    702 

implied   power   of   sale,   703 

judicial   sale  does  not  affect  conversion,   704 

sales  for  convenience  of  estate  do  not  effect  conversion,   704    • 

double   conversion,    705 

of  personalty  into  realty,  706 

reconversion,  707 

effect  of  conversion,  708 

time  at  which  conversion  is  effected,  709 

election   to  take  property,   free   from,   718 

extrinsic  evidence  inadmissible  to  show  intention  to  convert.  820 
CONVEYANCE.     What  is,   676 

effect  of  conveyance  of  testator  in  his  lifetime  upon  dower,  713 

CONVICT,  will  of,  86 
gift  to,   155 

may  act  as  attesting  witness,   199,   360 
may  contest  will,   325 

COPARCENER.       See   Common,   Estate  ix. 

COPY.     Whether  certified  copy  of  will  is  admissible,  368 

CORN  stored  in  cribs  does  not  pass  under  gift  of  growing  crop,  494 

CORPORATION,  restriction  on  gift  to,  as  to  amount,  153 

member  of,  competent  attesting  witness  to  devise  to  corporation,  194 

included   in   "legatees,"  535 

misnomer  in  gift  to,  539 

gift  to,  where  two  crops  have  same  name,  539 

when   gift   to   trustees,   not   gift   to,    539 

gift  to  non-existent,  whether  perpetuity,   640 


INDEX.  1097 


(References  are  to  sections.) 


CORPOKATION— Continued. 

gift  to,  on  ultra  vires  condition,  675 
dissolution    of,    before   vesting,    cauwes   lapse,    740 
misdescription  or   misnomer,   819 

See    also    Private    Corporation,    Municipal    Corporations. 
CORPUS.     One  entitled  to  support  can  not  have  possession  of,  605 
CORRECTION  OF  WILL  at  probate,   314 

of  erroneous  description  by  construction,  487 
not  attempted  in  equity,  816,  819 
CORRESPONDENCE.     See  Letters. 
COSTS  in  probate  and  contest,  344 

in  construction  suits,  813 
CO-TENANTS.     See  Common,  Estate  in. 
COUNTY.     Charitable  gift  to,  644 
COURT  of  probate  powers,  315 
powers  of,   in  contest,  332 

having  jurisdiction  to  admit  foreign  will  to  probate,   356 
gift  dependent  on  consent  of,  a  perpetuity,  636 
what  court  has  jurisdiction   in   suit  to  construe  will,   807 
COURTHOUSE,     Will  may  be  probated  outside  of,  315 
COUSIN    excludes    illegitimates,    532 
unless  by  context,  532 
when   including   illegitimates,   529 
prima   facte    is    first   cousin,    532 
excludes   first   cousins   once   removed,   532 
excludes   second   cousins,   532 
unless  by  context,   532 
meaning  of  second  cousin,  532 
COVENANT.    See  Contract. 
COVERTURE  as  affecting  testamentary  capacity,  89,  93 

See  Testamentary  Capacity. 
CREDIBLE,   what   is   credible   witness,    191 

See   Competency. 
CREDIBILITY  of  witness,  question  for  jury,  333,  334 
CREDITORS  can  not  be  prejudicially  affected  by  devise,  149 
of  testator,  competency  of,  as  subscribing  witness,  199 
of  legatee  may  propound  will  for  probate,  317 
of  testator  can  not  contest,  325 
of   heir,   whether   allowed   to   contest,    325 
^     of  life  tenant   defeated  by  sale  under   power,   696 
of  donee  of  power,  rights  of,   577,   697 
when  satisfaction  presumed  froin  gift  to  creditor,   795 
when  satisfaction  not  directed  in  will,  796 
when  directed,  797 

of  life  tenant,  when  can  sue  to  construe,  808 
"CREDITS,"  passes  interest  in  business,  498 
CREED,  condition  restricting  marriage  to  spouse  of  certain,  681 

condition    requiring   devisee   to   profess    certain,    682 
CREMATION,  expression  of  desire  for,  not  will,  46 
CRIME,  loss  of  testamentary  capacity  on  account  of  conviction  of,  86 

incompetency  as  witness,  199 
CRIMINAL  RESPONSIBILITY   not  test  of  testamentary  capacity,  95 
"CROPS,"  gift  of  "growing,"  does  not  pass  harvested  crops,  494 
CROSS  EXAMINATION  of  witness  at  Probate,  whether  allowed,  320 


1098  INDEX. 

(References  are  to  sections.) 

CilOSS-REMAIXDER.    See  Issue,  Failure  of  Issue,  Remainder. 
CRUELTY  OF  TESTATOR,  admissible  in,    undue    influence,    428. 
CUM  ONERE,  when  realty  is  devised,  7(36 
CUMULATIVE  AND  SUBSTITUTIONAL  LEGACIES,  definition.  798 

express  provision   in  will  conclusive,   798 

presumptions  in  absence  of  express  provision,  7C9 

motive,   effect   of   assigning,    799 

incidents  of  substitutional  and  cumulative  legacies,  800 
CURIOSITIES.      See  Furniture,   Household  Good.s. 
CURRENCY.     See  Money. 

CURTESY,   husband  can  not  be  deprived    of,   137 
CUSTODY  of  will  as  affecting  presumption  of  revocation,  449,  450 
CUSTOM.    Wills  valid  by  local  custom,  12 

realty   devisable   by   parol   by    special    custpm,   232 
CUSTOMARY  LANDS.    See  Custom. 
CUTTING  included  in  tearing,  248 
CY   PRES,   history  of,   655 

whether  judicial  or  executive,  655 

class  of  American  jurisdiction,  655 


D 

DANCING,  prohibition  of,  in  club  for  educational  purposes,  646 

DATA  for  will,  furnishing,  by  beneficiary,  is  not  undue  influence,  414 

DATE   of   will,    what   is,   25 

of  alteration  may  be  shown  by  declarations  of  testator,  423 

DAUGHTERS.     See  Child,  Children. 

DAUGHTER-IN-LAW.     See   Child,    Children,    Consanguinity. 

DE  DONIS.     See  Fee  Tail. 

DEAF,  testamentary  capacity  of,   117 

See    Testamentary    Capacity 

gift  for  education  of,  is  charity,  645 
DEATH.     Will  can  not  take  effect  until  death  of  testator,  49 

will   in   contemplation   of,   62,   63 

effect  of  approach  of,  16 

if  beneficiary  does  not  revoke  will,  285 

will  dates  back  to  death  of  testator  on  probate,  358 

of  subscribing  witness  does  not  invalidate  will,   373 

of  legatee,  before  execution,  when  gift  not  v^oid,  530 

of  testator,  when  time  for  fixing  class,   545 

of  testator,  class  of  "heirs,"  prima  facie  fixed  at,  548 

"without    issue,"    gift    over    on,    creates    an    estate-tail    if    indefinite 
failure   of   issue,   564 

of  testator,  income  estimated  from.   601 

of  life  tenant,  apportionment  of  income  on,  606 

of   annuitant,   apportionment   of   annuity   on,   609 

of   trustee   does   not   defeat   ordinary   trust,    619 

of   trustee  defeats   discretionary   power,   619 

unless  express  provision  for  successors,  619 

of    testator,    facts    at,    determine    validity    as    to    Rule    against    Per- 
petuities, 626 

of  testator,  gift  vesting  at,  not  perpetuity,  631 

gift  to  one  in  being  at,  not  perpetuity,  631 


INDEX.  1099 

(References  are  to  sections.) 

^^"^i^^c^s^if  g!lf  over  on,  is  prima  facie,  death  in  lifetime  of  testator. 

time  at  which  death  defeats,  if  fixed  in  will,  controls    07 G 
under  given   age  construed   to   mean  death  without   issue,   67  b 
condition   as   to,   (370  j^f^o+a 

when   death  of   person  whose  consent   is   necessary   to   power,   defeats 

power,   093  .     .  ,    .     ^-  f.        7oo 

of  testator,  election  must  be  made  within  certain  time  after,  7Zy 

of   beneticiary   before   vesting  causes   lapse,   739 

of  trustee  does  not  cause  lapse,  739 

of  beneficiary  accelerates  payment  of  legacy,  mi 

legacy  payable  in  one  year  after,  of  testator,  803 
DEBENTURES.     /See  Stock. 
DEBT,  admission  of,  not  testamentary,  58 

of   testator   paramount   to   devise,    149,   7/7,  ^U5 

may  be  charged  on  realty  by  nuncupative  will,  240 

creation  of  new,  no  revocation,  278 

Whether  general,  specific  or  demonstrative,  767,  768,  770 

etiect  of  direction  to  pay  unenforceable,  498        ,,.,.„, 

of  partnership  not  released  by  gift  of  individual  debt,  501 

"debts  and  expenses"   include   legacies,   507 

condition  as  to  requiring  payment  of  testator's  debt  to  legatee   680 

when  donee  of  power  may  exercise  power  to  pay  his  own  debt,  691, 

695,   697 

charge  of,  on  specific  personalty,   ^59 

out  of  what   fund   payable  at  common   law,    /b^ 

at  modern  law,  762 

charge  of  debts,  702 

exoneration  of  personalty  from  debts,  703 

how  debts  are  charged  on  realty,  764 

liens   on   realty   payable  out  of   personalty,    765 

unless   not   to   secure   debts   of   testator,   7bb 

legacy  in  satisfaction  of  debt,  for  value,  77b 

when   gift   of,   is   adeemed,   780 

of  legatee  may  be  set  ofl'  against  legacy,  794 

direction   to   pay.   rebuts   presumption   of   satisfaction,    /97 
DEBTOR,    gift    to,    whether    satisfaction,    794 
"DECEASED  LEGATEE,"  meaning  of,  in  gift  to  class,  535 
•  DECEDENT,    communications   with,   when   incompetent,    361 

DECEIT,   when   undue   influence,    128  .„   .      ,     .  i    onr. 

inducing  testator  to  believe  that  his  will   is  destroyed,  255 
ASfee  Fraud. 
DECLARATIONS   OF   HEIR   as   to  his  own   feelings   admissible   to   show 
feelings    of    testator,    387  .       ■,     •     -v.^^   Aor. 

of  subscribing  witness  as  to  sanity  of  testator,  inadmissible,  425 
of  strangers  admissible  if  res  gestae,  425 
otherwise,  not,  452 
DECLARATIONS    OF    BENEFICIARIES    inadmissible    where    for    inter- 
est of  beneficiary,  401 
primissible  where  against  sole  interest  of  beneficiary,  401 
■        £  not  WW   against   interest  of  others   than   party   making   them, 

401 
admissible  to  show  feelings,  401 
in  undue  influence,  424 
in   revocation,   451 


1100  INDEX. 

(References  are  to  sections.) 

DECLARATIONS   OF   TESTATOR. 
I — In  general — 

when   incompetent  as  declarations  of  decedent,  361 

when   made  competent  by   statute,   362 

not  admissible  if  made  in  course  of  professional  consultation,  3(54 

unless  made  to   subscribing  witness,   365 
II — As  to  execution,   376,  377 

admissible  if  res  gestae,  376 

or  as  to  handwriting,  377 

or  mental  condition,  377 

otherwise  inadmissible,  377 
III — As  to  capacity,  400 

admissible  to  show  state  of  mind,  feeling,  etc.,  400 

but  not  to  show  truth  of  facts  thus  stated,  400 

not  admissible  if  too  remote,  400 
IV — Undue  influence — 

when  admissible  to  show,  423 
V — Alteration  and  spoliation — 

to   show   date,   433 

in  spoliation,  435,  437,  438,  441 

as  to  contents  of  spoliated  will,  441 
VI — Holographic  will — 

when  admissible,  446 
VII — Revocation — 

as  to  circumstances  of  destruction,  443 

as  to  revocation,  450 
VIII — Construction — 

whether  admissible  to  show  intent,  820 
DECREE.     In  construction,  812 

See  Judgment. 
DEDUCTIONS  of  advancements  from  share  of  legatee  when  directed  by 
testator,  787 
of  debt  of  legatee  from  legacy,  794 

DEED.     Confusion  of  will  with,  does  not  invalidate,  44 

direction  to  deliver,  on  death  of  testator,  not  enforceable,  46 

confused  with  will,  52,  53 

may  be   incorporated   in  will,   106 

revocation  of  will  by,  265 

revoking   deed   must   be   proved,   455 

gift  of,  does  not  pass  realty,  494 

may  be  shown  to  be  mortgage,  814 

DEFAULT  in  exercise  of  power,  eflfect  of,  694 
of  heirs,  or  of  issue. 

See  Failure  of  Issue,  Issue. 

DEFEASANCE  of  estate  by  non-performance  of  condition  subsequent,  675 

DEFEASIBLE  FEE,  563 

DEFECT   of   parties   in   suit,   to   construe,   808 

DEFECTIVE  written  will  is  not  nuncupative  will,  236 

will   can  not  revoke.  264 

codicil    does   not   republish  will.    307 

deficiency  of  personalty  as  creating  charge,   750 

DEFINITE  FAILURE  OF  ISSUE.     Gift  over  on,  not  perpetuity,  631 

See  Issue. 

And  see  Abatement. 

DEFINITE    AND   INDEFINITE    failure   of   issue,    572  591—594. 


INDEX.  1101 


(References  are  to  sections.) 

DEFINITIONS.     Abatement,  771 
ademi^tion,  779 
alteration,  298 
advancement,  788 
bequeath,    2 
bequest,    2 

burden  of  proof,  309 
class,  540 

construction,  457,  458 
contingent   interest,   656 
contingent  will,  60 
conversion,   699 
cousin,   532 

cumulative    legacy,    798 
"deceased    legatee,"   535 
definition,  458 
delirium,  113 
delirium   tremens,    114 
descendant,  527 
devise,    2 
devisee,    2 
devisor,   2 
duress,    133 
eccentricity,    110 
election,   710 
executory  devise,   578 
foreign  will,  355 
"hereinbefore  disposed  of,"  466 
heirs, 

holographic  will,  229 
idiot,   100 
imbecile,    101 
inherent  elements,  42 
insane  delusion,  104 
insanity,   103 
interpretation,  458 
"issue,"  526 
lapse,  738 
legatee,  2 
legacy,  2 
lost  will,   347 
lucid  interval,  109 
monomania,    108 
mystic  will,  243 
next   of   kin,   521 
nuncupative  will,  232 

nuncupative  will  at  Louisiana  Law,  241,  242 
off'spring,    526 
power,   689 

preparing  for  the  ministry,  537 
probate,  312 
publication,    225 
"read  law,"  537 
"relatives,"  529 
remainder,    578 
republication,  303 
residuary   clause,    507 
residuum,   507 
revocation,   244 
senile   dementia,    102 


1102  INDEX. 

(References  are  to  sections.) 

DEFINITIONS — Continued, 
servants,  534 
spoliated   will,    347 
spoliation,  300 
substitutional   legacy,,   798 
survivors,   536 
testament,  2 
testator,   2 
undue  influence,   125 
vested  interest,   656 
void    gift,    745 
waiver,  710 
will,   2 

And  see  also  Words. 
DELAY  in  offering  will  for  probate,  effect  of,  316 
DELIRIUM.     Definition,   113 

See  Testamentary  Capacity.  * 

DELIRIUM  TREMENS.     Definition,   114 

one  suffering  from,  can  not  revoke  will,  257 
See  Testamentary  Capacity. 
DELIVERY  of   deed,   important   as   determining   whether   instrument  can 

be  will,  52 
DELUSION.      (Insane),    104,    108 

See  Testamentary  Capacity. 
DEMAND.  When  legacy  payable  on,  802 
DEMENTIA.     Senile,  102 

See  Testamentary  Capacity. 

DEMURRER   in   contest,    329 

to  evidence,   when   sustainable,   334 
DEMONSTRATIVE  LEGACY  defined,  770 

examples,  770 

abates   with  general   legacies,   774 
DENIZATION.     Effect  of,  on  testamentary  capacity,  87 
DENOMINATION.      (Religious). 

condition   limiting  marriage  to,   681 

condition  requiring  devisee  to  adhere  to  certain,  682 
DENOMINATIONAL  TEACHING.     Prohibition  of,  in  school  is  valid,  645 
DEPENDENT  RELATIVE   REVOCATION,   263,   275-277 

See   Revocation. 
DEPOSITION  permitted  at  probate,  320 

may   be   used   at   contest,    367 
DEPRECIATION   of   securities,   602 
DESCENDANTS    synonjanouc   with    "issue"    in    primary    meaning,    527 

excludes   collaterals,   527 

excludes   ascendants,   527 

included  under  representative,  533 

requires  distribution  per  stirpes,  555 

meaning  of  in  statutes  against  perpetuities,  633 

who  are,   in   statutes  preventing  lapse,   743 
DESCENT  AND  DISTRIBUTION.     Statute  of,   effect  on  construction  of 

will,   467 
DESCRIPTION  of  document  to  be  incorporated,   166 

of  realty  by  reference  to  plat,  484 

of   realty   by   metes   and   bounds,   485 

of  realty  by  popular  name,  488 


INDEX.  1103 

(References  are  to  sections.) 

DESCRIPTION— Continued. 

general  and  particular,  502 

inconsistency  in,  reconciled,  503 

when  name  of  class  added  to  names  of  beneficiaries,  543 

when  names  of  members  of  class  added  for  description,   543 

when  "heir"  description,  not  class,  55G 

of  property  given   in  remainder,  585 

can  not  be  supplied  by  parol,  821 
DESIRE.     Effect  of  words  showing. 
See  Precatouy  Trust. 
DESK.     Gift  of  contents  of,  494 
DESTITUTE.     Gift  in  aid  of,  is  charity,  647 

DESTROYED  WILL.     See  Destruction,  Revocation,  Spoliation 
DESTRUCTION    (of  will)    as  revocation,  252 

effect    on    probate,    348 

causes    presumption    of    revocation,    442 
DESTRUCTION  of  contingent  legacy,  671 
DEVASTAVIT  by  executor   does  not  create  right  of  contribution,   793 

See   Waste. 
DEVISABLE  INTEREST.     What  property  is  devisable,  18,  29,  676 

vested  interests  are,  657 

and   contingent   interests,   when,   657 

on  death  without  issue,  676 

interest  of  legatee  dying  before  vesting  is  not,  743 
See  Property. 
DEVISE.     Definition.  2 

of  realty,  by  what  law  governed,  28 

may  be  used  if  personalty,  473 

prima  facie  passes  fee-simple  at  modern  law,  482 

of  realty  may  carry  money,  482 

by  value,  487 

of  realty  at  valuation,  490 

of  rents,  491 

■    See  Rents. 

power   of,   does   not  restrict   fee,   562 

where  distinguished  from   legacy  as  to  condition   in  restraint  of  con- 
test,  683 

direction  to  devisee  in  fee  to  make  certain  devise,  void,  684 

power  of,  not  included  in  power  of  sale,  690 

charge  of  legacy  upon   specific,   758 

abatement  of,  777 

failure  of  title  to,  793 

DEVISEE.     Definition,   2 
who  can  be,  150,  156 
aliens,    150,    151 
coi-povations,   private,    152,    153 
corporations,  public,  154 
convicts,    155 
illegitimates,   156 
subscribing  witnesses,  196 
has  no  title  till   probate.   313,   805 
nor   against  creditors,   777^  805 
may  defend  in  contest,  327 
taking  same  interest  as  heir,   583 
when  personally  liable  for  charge,  754 
personal    liability   of,   how   enforced,    761 
equity  will   not  determine  legal   rights   of,   806 


1104  INDEX. 

(References  are  to  sections.) 

DEVISOR.     Definition   of,   2 
DiiVOLUTION  of  void  legacies,  507 
of  lapsed  legacies,  507 
of  void  legacies  and  devises,  746 
of    lapsed    legacies    and    devises,    744 
DISAPPEARANCE    (of  will).     Revocation  presumed   when,  449 

of  one  of  duplicate  wills,  253 
DISAPPEARANCE    (of  testator).     Presumption  of  death,  not  conclusive, 

341 
DIARY  when  testamentary,  58 

DIE  WITHOUT  ISSUE.     -S'ee  Dying  without  Issue,  Issue. 
DIRECT  ATTACK  on  order  of  probate  for  want  of  notice,  319 

on   judgment   of   contest,    337 
DIRECTION  by  testator  for   signature,  by  oth^r   176 

to  support  determines  duration  of   indefinue  devise,   573 
DISABILITIES   preventing   limitation    as   to   contest   from   running,    321 
can  not  be  tacked,  321 
of  some  heirs  enures  to  all,  342 
of  testator, 

See  Testamentary  Capacity. 
DISCLAIMER,  of  devise  or  legacy,  devolution  upon,  744 

effect   on   charge,   754 
DISCREPANCY  IN  WILL.     See  Inconsistent  Provisions. 
DISCRETION    (of  trustee  or  executor),  whether  valid,  619 

of  executors   in   distribution   of  charitable  gift,   whether  valid,   643 

of  trustees  to  make  division  creates  vested  interest,  664 

of  trustees  to  pay  beneficiary,  685 

power  of  sale  at  discretion  of  donee,  is  not  controllable  by  court,  69G 

can  not  be  exercised  by  survivor  or  successor,  692 

whether  power  of  sale  to  support  rests  in  discretion  of  life  tenants, 

696 
power  of  sale  at.  does  not  effect  conversion,  702 
of  executor  is  not  controllable,  764 
DISCRIMINATION   in  distribution  is  not  conclusive  as  to  lack  of  men- 
tal  capacity,   385 
nor  as  to  undue  influence,   132 
but  is  admissible  in  evidence,  385,  426 
DISEASE.    Effect  of  on  testamentary  capacity,  116 

See  Testamentary  Capacity. 
DISINHERITANCE.    Expression  of,  intent  to  cause,  not  wiW,  46 
power  of  testator  to  cause,  385 
not  presumed.   467 
not  caused  by  negative  words,  467 
when  words  of  exclude  from  class,  543 
DISINTERESTED.     What  is  disinterested  witness,   191 
DISMISSAL.     Right  to,  of  contest,  3.30 
DISPOSING  OF  PROPERTY.     What  is.  676 
DISPOSITION,     Power  of,  effect  on  life  estate,  576.  577 
DISPOSITIVE.     What  words  are,  58 
DISPOSITIVE  CLAUSE.     End  of,  is  technical  end  of  will.  183.  186 

addition  of.  after  legacy  will,  186 
DISPUTING  WILL.     Validity  of  conditions  against.  683 
DISSEISIN.     Testamentary  power  over  realty  in  case  of,  144 
election  to  acquiesce  in, 
See  Election. 


INDEX.  1105 

(References  are  to  sections.) 

DISSOLUTION  of  corporation,  causes  lapse,  740 
DISTRIBUTION.     Class  prima  facie  fixed  at  time  of,  548 

as  in  intestacy  adopted  in  absence  of  contrary  intention,  533 

fund  for  future  income  nuist  be  retained,  602 

when  necessary  to  terminate  trust,  618 
DISTRIBUTION,    Statute   of.      Construction   of   will    in   analogy    to,   pre- 
ferred, 467,  553,  559 
DISTRIBUTIVE  gift,  not  gift  to  class,  542 

DISTRIBUTIVE    SHARE    OF    PERSONALTY.      Widow    can    not    be    de- 
prived of,  137 

affected  by  election,  735 
DIVESTING  of  vested  gift,  656 

vested    remainder,    661 

vested  legacy,   668 
DIVIDENDS.  Whether  income  or  principal,  602 
DIVISION.     Vesting  postponed   till,   663,   664 
DIVORCE.     Mistake  as  to,  120 

does  not  revoke  will,  285 

condition   requiring,    681 
DOMESTIC  ANIMALS  whether  passed  by  gift  of  stock,  497 
DOMESTIC  SERVANTS.     Gift  to,  534 
DOMICILE.     Change  of,   32 

effect  of  change  of  on  law  governing  will,  32 

nuncupative  will  made  in  absence  from,  235 

of  testator  at  death  determines  jurisdiction  of  probate  court,  315 

of  testator  conclusively  establishetl  by  judgment  in  contest,   341 

law  of  controls  as  to  revocation,  454 

law  of,  determines  status.  520 

effect   of,   on   question   of   family,    528 

effect  of  on  jurisdiction  of  United  States  courts,  807 

DONEE  (of  power).     Rights  of,  600 

^vlren  helan  use  power  for  his  own  benefit,  690,  691,  695,  697 
or  for  that  of  his  creditors,  697 

who   can   act   as,    692  .   .      ,    -,  ^^ 

power  of  successor  or  survivor  of  original  donees,  bJZ 
when  attorney  can  act  for,  692 
necessity    of    referring    to    power,    698 
"DONORS"  construed  "donees,"  473 

DOUBLE  CAPACITY  of  executor  and  donee  of  power,  695 
DOUBLE  CONDITION.     Construction   of,   674 

each  must  be  fulfilled,  676,  679 
DOUBLE  CONVERSION,  704 
DOUBLE  PORTIONS  not  favored  in  construction,  783 

See  Ademption 
DOUBLE  WILL,  66 

DOWER  interest  of  wife  can  not  be  ^controlled  by  husband,   23 
widow  can  not  be  deprived  of,   13/ 
gift  described  as.  is  fee  by  modern  statutes,  562 
oift  to  step-son  on  condition  that  his  mother  release  dower,  688 
presumed  in  addition  to  devise  at  common  law    ill 
presumed   to  be   superseded   by   devise  by   statute,   713 
election  between,  and  benefit  under  will,  711 
common  law  rule,  712 
statutorv  will,  713 

used  with  reference  to  personalty.  735 
legacies  in  lieu  of  dower,  for  value,  776 


1106  INDEX. 

(References  are  to  sections.) 

DRAFT  OF  WILL  admissible  show  contents  of  lost  will,  440 
not  to  contradict  contents  of  existing  will,   294,   816 

DRAUGHTSMAN.     Employment  of,   by   beneficiary,   does   not   raise   pre 
sumption  of  undue  influence,  414,  415 
legacy  to,  creates  presumption  of  undue  influence,  414 

DRUGS.     Efi'ect  of  use  of,   112 

;S'ee  Testamentary  Capacity. 
use  of,  does  not  raise  presumption  of  permanent  incapacity,  385 

DRUNKENNESS,  112 

iSee  Testamentary  Capacity. 

admissible  to  show  undue  influence,  428 
DRY   TRUST.     See  Trusts. 
DUE  BILL.    When  testamentary,  55 
DUMB.     Testamentary  capacity  of,   117 

8ee  Testamentary  Capacity. 
DUPLICATE  WILL.     Destruction  of,  is  revocation,  253 

effect  of  witnesses   signing  different  instruments,    190 
DURATION  of  gift  of  income,  599 

of   annuities,    607 

of  trust,  618 
"DURING"  widowhood  creates  life  estate,  571 

DURESS.      Defined,    133 

compared  with  undue  influence,  133 

effect  of  duress  on  validity  of  will,   133 
DWELLING  HOUSE.     Condition  on  occupation  of,   686 

effect  of  testator's  making  nuncupative  will  away  from,  235 
"DYING   WITHOUT   ISSUE,"   591,   592,    593,   594 
See  Issue. 

prima  facie  in  life  of  testator,  substitutional,  662 

vested  remainder  defeasible  on,  662 

when  estate  vests  on,  663 

when  substitutional  and  preventing  lapse,  676 


E 

"EACH."     Gift  to,  not  gift  to  class,  542 
EASEMENTS  pass  under  gift  of  property. 

See  Realty. 
ECCENTRICITY  affecting  testamentary  capacity,   110 
See  Testamentary  Capacity. 

complicated  with  old  age,   102 

admissible  as  affecting  undue  influence,  428 
ECCLESIASTICAL   COURTS.      Probate   originated   in,    312 
ECCLESIASTICAL   LAW.      Parol   will   at,   232 
EDUCATION.     Gift  for,  537 

gift  for,  at  specified  college  fails  if  college  is  not  erected.  537 

is   charity,   645 

cy  pres  applied   to  gifts   for,   655 

gift  for,   not  defeated   by  death,   675 

gift  for,  wliether  adeemed,  785 
"EFFECTS"  prima  facie  passes  personalty  only,  478 

provision  for  sale  of,  478 

including  realty,  478 
EFFORT.     What  is  reasonable  effort    to  see,  211 


INDEX.  .  1107 

(References  are  to  sections.) 

p]JECTMENT  can  not  be  maintained  by  devisee  until  after  probate,  313, 
805 

questions  of  construction  raised  in  action  on,  806,  816 
EJUSDEM  GENERIS.     8ee  Context. 
ELDEST,     See  Child,   Children,  Grandchild. 
ELECTION.     Law  controlling  as  to,   in  conflict,   38 

of  remedies  for  breach  of  contract  to  devise,  80 

case  for,  not  presumed,  504 

definition,  710 

test  for  necessity  of,   710 

partial    election    impossible,    710,    726 

who  can  make  election,  710,  719 

election   between   dower   and   benefits   under   will,    711 

common  law  rule  as  to  necessity  of  election — election  not  necessary, 
712 

statutory  rule — election  prima  facie  necessary,  713 

between   life  insurance  and  gilt   by  will,   714 

when  necessary,   714 

between  community  property  and  gift  by  will,  715 

between  homestead  rights  and  gifts  by  will,   716 

between  general  property  rights  and  gifts  by  will,  717 

between    trust   property    and   gift   from   trustee,    717 

between  antenuptial  contract  and  gift  in  lieu  thereof,  717 

to  take  property  unconverted,  707.  718 

what    constitutes    election    to    take   unconverted,    718 

can  be  exercised  only  by  all,   719 

when  representatives  may  elect,  719 

election  by  the  court,  719 

effected  by  common  law  by  oral  agreement,  720 

or  by  conduct,  720 

by  qualifying  as  executor,  721 

by  engaging  in  litigation,  722 

by  accepting  property,   723 

unless  by  title  independent  of  will,  723 

by  receipt  of  money,  724 

effect  of  election,   725,  727 

effect  when  election  not  necessary,   725 

effect  when  election  necessary,   726 

effects  estoppel,  726,  814 

knowledge  of  rights  necessary  to  valid  election,  727 

written   election   required  by  statute,   728 

time  at  which  statutory  election  necessary,  729 

what  constitutes  filing,  730 

whether  written  election  can  be  withdrawn,  731 

estoppel  to  deny  written  election,  732 

effect  of   election,   733,   737 

upon   rights   as   heir,   733 

upon  rights  to  year's  allowance,   734 

upon  right  to  distributive  share  in  personalty,   735 

upon  dower  in  intestate  property,  736 

upon   dependent  estates,   737 

causes  acceleration,  737 

disappointed  devisees  to  be  compensated  out  of  refused  gift,  737 

when  creating  right  of  contribution,   793 

"ELEEMOSYNARY."     Equivalent  to  charitable,  639 
ELEMENTS   of  insane,  delusion,   105,    107 

of  undue  influence,   127 

of  will. 

Sec   Inherent  Elements,   Extrinsic  Elements   and   Will. 


11  OS  INDEX. 

(References  are  to  sections.) 

EMBLEjVIENTS   pass   with   devise  of   realty,   494 

EMPLOYEE   of   corporation,   competent   witness   to   will   devising   to   cor- 
poration,  194 

will  in  favor  of. 

See  Business   Relation. 
EMPLOYMENT.     Eflect  of  leaving,  on  gift  to  servants,  535 

of  attorney  to  draw  will  does  not  create  presumption  undue  influence, 
414,  415 
EN"  VENTRE  SA  MERE.     See  Child   (en  ventre  sa  mere). 
END.     Whether  signature  of  testator  must  be  at,  l&l,  187 

what  is  end  of  will,   183,   187 

testator  must  sign  at,  181,  187 

witnesses  need  not  sign  at,  221 
ENDOWMENT.     Gift  for,  of  charity    653 
ENGLISH.     Early  English  period,  8 

ENTREATY  to  make  will,  not  of  itself  undue  influence,  127 
ENTRY.     Right  of,  whether  devisable,   147 

in   book,   when   conclusive,    788 
ENUMERATION   of   specific   property,   when   not  affecting  gift   of  entire 
estate,  475 

eii'ect  of  on  general  description.  502 

of   residuar}'   estate,   etlect   of,   506 

of  attributes  of  estate  does  not   mcdifj'  nature,   575 
ENVELOPE.     Burning  of,  does  not  revoke  will,  247 
EPILEPSY  no  presumption  of  continuance,  384 

Sec  Testamentary  Capacity. 
EQUAL  DISTRIBUTION  of  residuum,  510 

"EQUAL  PARTS"  among  those  entitled  to  estate  in  intestacy,  559 
EQUALITY'  of  distribution   presumed,   468 
"EQUALLY""  requires  per  capita  distribution,  554 

among  "ueirs,"   557 

EQUITABLE  RELIEF.     See  Equity. 

EQUITABLE  INTERESTS  are  devisable,  144,  148 
even   if   legal   title  is   afterwards   acquired,    148 
conveyance  of,  operated  as  revocation,  278 
subject  to  rule  in  Shelley's  Case,  564 
whether    joint   or    several,    622 
power   of   cestui   que   trust   over,   622 
rule  against  perpetuities  applies  to,  628 
subject  in  vesting  to  same  rules  as  legal,  659 
created  by  mandatory  jDower,  694 

EQUITABLE  SEPARATE  ESTATE.     Testamentary  power  of  feme  covert 
over,  92 

EQUITY.     Validity  of  wills  at,  13 

enjoins  against  revocation,  when,  70 

testamentary   capacity   of  married  woman   in,   92 

gives  no  relief  where  testator  is  prevented  from  revoking  by  fraud,  255 

will  not  probate  will.  315 

nor  enjoin  probate,  315 

can  not  relieve  where  period  for  contesting  has  elapsed,   321 

contest  not  suit  in.  323 

may  admit  lost  will  to  probate,  349 

restrains  waste  of  personalty  by  life  tenant,  596 

prevents  murderer  of  testator  from   enjoying  property,   687 


INDEX.  1109 

(References  are   to  sections.) 

EQUITY— Continued. 

when    equity    entertains    suit   to  -construe,    806 

will   not  relorm  a   will,  809,  816 

can  not  correct  will,  816 
EQUITY    (of  redemption),  passes  under  will,  278,  279 
EQUIVOCATION,  538,  539,  819 

/S'ee  Uncertainty,  Misnomek,  Extrinsic  Evidence. 
ERASURE.     When  a  "tearing,"  248 
ERRONEOUS  description  of  realty,  487 
ERRONEOUS  RECITALS.     See  Mistake,   Error. 
ERROR   (proceeding  in).     Contest  is  not  proceeding  in,  323 

does  not  lie  to  an  order  probating  a  will,  323 

in  charge  of  court,   333 

lies,   to   judgment   in    contest,    338 

enuring  to  one  heir  enures  to  all,  342 

not   reversible,   to   admit   certified   copy  of   will    if   no   question   as   to 
genuineness    on    contest,     368 

lies  to  decree  in  construction  suit,  812,  815 
ERROR,   revocation  by,   258,   259 
ESCROW.     Delivery  in,  directed  by  will,  invalid,  46 
ESTATE.     Effect   of   size   of,   on   testamentary   capacity,   98 

whether  costs  payable  out  of,  344 

source  of  testator's,  admissible,  386 

what  words  pass  entire,   475 

passes  realty  and  personalty,  476 

of  testator,   in   realty,  effect  of  misstatement,  487 

postponement  for  convenience  of  settling,  does  not  violate  rule  against 
perpetuities,   629 

power  of  sale  does  not  per  se  create  any,  689 

what  estate   donee  of  power   may  convey,   690 

in  common, 

.SVc  Common. 

in  fee. 

See  Fee. 

in  fee-tail, 

See  Fee-tail. 

in  joint  tenancy. 

See  Joint  Tenancy. 

for   life. 

See  Life  Estate. 

in  severalty, 

See  Severalty. 

pur  auter  vie,  570 
ESTATE-TAIL.     Sec  Fee-tail. 
ESTOPPEL  to  contest  will,   326 
Sec  Election. 

to  deny  written  election,  732 

to  deny  construction  of  will,  814 
EVIDENCE  of  contract  to  devise,  81 

mistake   not   based   on,   is   insane   delusion,    105,    lOf 

can  not  remove  insane  delusion,   107 

of    lops    and    contents   of   spoliated   will,    270 

at  probate.   320 

what,   is  sufficient  to  support  veVdict,   334 

of  mental  capacity.   334 

at  probate  of  foreitrn  will,  357 

general   scope  of  discussion,   359 


1110  INDEX. 

(References  are   to  sections.) 

EVIDENCE— Continued. 

competency,  common  law  rule,   3G0 
competency  at  modern   statutes,   361-365 
communications  with  decedent  inadmissible,  361 
unless  made  competent  by  statute,  362 

subscribing:  witness  competent  at  execution  is  competent  at  trial,  363 
confidential   coumiunicatious  inadmissible  if  made  to  one  not  a  sub- 
scribing witness,  364 
disability  waived  where  made  to  subscribing  witness,  365 
importance  of  testimony  of   subscribing  witness,   366 
necessity  of  calling  subscribing  witnesses,   367 
admissibility  on  contest  of  record  of  evidence  at  probate,  368 
will  is  admissible,  368 
of  alteration,  433 
declarations  of  testator  as  to  alteration,  433 

See  Execution,  Testamentaky  "Capacitt,  Undue  Influ- 
ence, Extrinsic  Elements  (of  will).  Revocation, 
Spoliated   Wills,    Construction,  Extrinsic   Evidence. 

EX  PAETE  proceeding.     Probate  is  in  nature  of,  312 

EXCEPTION  from  general  bequest,  481 

of  property  from  residuary  clause,  507 

EXCHANGE.     Power  of  sale  does  not  include  power  of,  690 

EXCLUSION  from  class,  what  is,  543 
must  be  clear,  543 

EXECUTION    (of  will). 
I — Substantive  law — 

upon   what   date   completed,    25 

must  precede  death  by  what  time,  25 

of  will  passing  realty  controlled  by  lex  rei  sitae,  28 

by  mistake,  47 

in  jest,   47 

formalities   of,   essential,   58 

by  one  not  testator  does  not  vitiate  will,  65 

mistake  in,  119 

to  invalidate  will  undue  influence  must  exist  at  date  of,  130 

changes  in  will  before,  neither  alteration  nor  spoliation,  298 

defect  in,  cured  by  republication,  308,  311 

whether  due  execution  conclusively  established  by  judgment,  341 

facts  of,  admissible  in  undue  influence,  429 

of  will,  when  class  fixed  at,  545 
II- — Evidence — 

1.  Burden  of  proof,  370 

extends  only  to  preponderance  of  evidence,   370 

2.  Fresvmiptions,    371-375 

of  due  execution   if  signatures  are  proved,   371 

aided  by  attestation  clause,  371 

may  prevail  if  witnesses  forget  facts  of  execution,  372 

or  are  beyond  jurisdiction  of  court,   373 

or   deny   facts  of  execution,   374 

presumption   arising  from  character   of   scrivener  who   supervises 

execution,    375 
that  will  on  several  pieces  of  paper  was  executed  as  found,  161 

3.  Declarations  of  testator,  376,  377 

admissible  if  res  gestae,  376 
or  as  to  handwriting.  377 
or  as  to  mental  condition.  377 
otherwise  inadmissible,  377 


INDEX.  im 

(References  are  to  sections.) 

EXECUTION   (of  will) — Continued. 

4.  Expert  evidence  as  to  handwriting,  378 

comparison  of  genuine  papers,  378  ,  ^    ^  o-o 

evidence  of  those  familiar  with  handwriting  of  testator,  3/8 

5.  In  general — 

intention  of  testator  to  make  will,   380 
whether   opinion   of   witness   must   exist   at,    393 
facts  of,  admissible,  395 
of   spoliated  will,   438 
of  spoliated  will  when  presumed,  439 
EXECUTION.     When  sale  on,  defeats  lien  of  legacy,  760 
EXECUTOR.     Liability  of,  for  contract  of  decedent  to  devise,  78 

where  clause  appointing,  added  below  signature  invalidates  wnl,   186 
competency  of  as  subscribing  witness,   19'J 
may  propound  will  for  probate,  317 
may  defend  contest,   327 

not  personally  liable  for  costs  and  attorney  fees,  345 
is  competent  witness  at  contest,  361 
included  in  "representatives,"  533 
taking  as  trustee  is  a  legatee,  535 

power  of  sale  to,  does  not  enlarge  life  estate  in  fee,  57  b 
discretion  of,  643 

gift  to,  in  addition  to  legal  fees,  held  conditional,  688 
When  donees  of  power  by  implication,  692 
donee  of  power  to  be  distinguished  from,  695 
qualifying  as,  when  election,  721 
necessary  for  collection  of  debts  due  decedent,  801 
EXECUTORY  DEVISE.     Definition,  578 
how  defeated,  578,  575 
rule  against  perpetuities  applies  to,  628 
EXECUTORY  TRUST.     See  Trust. 
EXEMPTION.     See  Homestead. 

EXILE  of  husband,  effect  on  testamentary  power  of  wife,  89 
EXONERATION  of  personalty  from  debts,  by  nuncupative  will,  24§ 
of  personalty  by  charge  on  realty,  756 
of  personalty  from  debts,  763 
of  realty  prima  facie  from  personalty,  762 

EXPECTATION  of  heir  can  not  be  devised,  146 
words  of,  effect, 

See  Precatory  Trust. 

"EXPENSES."     What  are,  002 

EXPERT  EVIDENCE   as   to  handwriting,   378 

as  to   sanity,    389,   392 

who  are  experts  as  to  testamentary  capacity,   ^89 

can  not  supplant  jury,  392 

or   give   opinion   on    domestic   law,    392 
EXPLANATORY  WORDS  may  reduce  fee  to  life  estate,  474 

See  Context. 
EXPRESS  CONDITIONS     See  Conditions. 
EXPRESS   REVOCATION,      See   Revocation. 
EXPRESS  TRUST.     -See  Trust,  613 
EXTINCxUISHMENT  OF  CHARGE.      See  Charge. 

of  power.     See  Power. 


1112  INDEX. 

(References  are   to  sections.) 

EXTRINSIC  ELEMENTS  of  ordinary  written  will, 
I — History — 

History  of  Law  of  Wills,  157 

Statute  of  Wills,  157 

Statute  of  B'rauds,  157 

History  of  Law  of  Testaments,  157 

Modern   Statutes,    158 
II — Writing — 

will    must    be    in,    159 

materials  necessary,  159 

language  in  which  will  may  be  written,   IGO 

writing  on  several  pieces  of  paper,   IGl 

so  where  pieces  are  pasted  together.  Kil 

incorporation   of   documents,    1(32-109,    180 

requisites    to    incorporation,    102-100 

document  must  be  properly  referred  to,  162,  103 

and  must  be  in  existence  at  execution  of  will,   162,   165 

and  must  correspond  to  description,  102,  100 

incorporation  by  asterisks,   104 

New  York  rule,   104 

eli'ect  of  incorporation,   167 

reference  to  oral  instructions,   108 

unincorporated  document  may  be  used  for  identification,   169 
III — Signature  of  testator — 

seal  not  necessary,   170 

how  signature  may  be  affixed,  171 

form  of   signature,   name   of   testator,   172 

signature  by  mark,   173 

what  is  mark,   173 

signature  by  other  than  testator,   174 

formalities  of   signature  by  other   person,    174 

signature  by  other  must  be  in  presence  of  testator,  175 

and  at  his  express  request,  176 

form  of  request,    176 

by  whom  signature  may  be  affixed,  177 

form  of  signature  by  other  for  testator,  178 

efiect  of  adding  name  of  testator  to  mark,   i79 

guiding  hand  of  testator  is  signature  by  testator,  180 

place   of   signature   upon  will,    181-187 

under  wil's  act,   181 

under  modern  statutes,  182 

what  is  end  of  will,   183-187 

signature   in  'attestation    clause,    183 

blanks   in  body   of  will,    184 

efTect  of  blanks  immediately  before  signature,  185 

additions  after  signature,  186 

where   made   after    complete   execution,    186 

where  incorporated  by  reference,  180 

where  dispositive  clause  is  added,  186 

where  clause  not   dispositive  is  added,    186 

where  clause  appointing  executor  is  added,  186 

signature  opposite  end  of  will,  187 
IV — Attestation  and  subscription — 

only  necessary  where  required  by  statute,  188 

distinction  between  wills  and  testaments  as  to,  188 

distinction  between  attestation  and  subscription,  189 

subscribing  witnesses,  number  of,  190 

effect  of  addition  of  disqualified  witness,  190 

competency  of  subscribing  witness,  what  is  "credible"  witness,  191 

test  of   competency,   191 


INDEX.  ^^^^ 


(References  are  to  sections.) 

EXTRINSIC  ELE^rENTS— Continued 

at  what  time  competency  must  exist,  1J2 

who   are   competent   witnesses     11)3 

beneficiary  not  competent,   1J3,   u* 

who  are  beneficiaries,  194 

effect  of  release,  195 

eflect  of  modern  statutes,   190  ,107 

competency  of  spouse  of  beneficiary  at  common  law.  19  < 

under  modern  statutes,  198       _ 

competency  of  heir  of  beneficiary,  1J9 

competency  of  probate  judge,  199 

competency   of   executor,    199 

competency  of  creditor  of  testator,  19 J 

competency  of  convict,  199 

StS  t  '  u'Ted  t1uWrM,rwitnesses,  201-208    227 

SgnaC  of'tlul::  to  J.„ade  i„  pre-nce  of  witnesses,  202 

may  be  by  informal  statements,  205 
or  by  gestures,  205 

or  bv   conduct,   205  •        j.    .„   onr; 

witnesses  must  have  opportunity  to  see  ^;snatuie   205 
acknowledgment  of  will  instead  of  signature,  200 
.     under  statute  of  frauds,  206 
under  modern  statutes,  206 
",„,,«„„  to  sign  or  ad<„ow,edg,. 
attesting  witness  must  see  testaioi  hi^n 
signature,    203,    207  ono    9ld 

s^o^s  ■"ri;"":..t'nrots\Su.;"o.t  ot  ,.3.,.  o^  t.. 

tator  insufficient,  21o 
simultaneous  presence  not  necessary,  2ib 
must  attest  capacity,  207 
presence  in  what  cases  necessary,  209 
involves  mental  cognizance,  209 
and  physical  proximity,  210 
what   constitutes   proximity,   210        _ 
abilitv  to  see  with  reasonable  effort  is  essential,  210 
what"  is   reasonable   effort,   210 
what  witness  must  be  able  to  see.  21. 
presence  held  to  depend  upon  perception  in  general,  213 
presence   of  blind,   214 
witnesses  must  sign  amnio  attestadi,  -i/ 
and  at  request  of  testator,  218 
form  of  request,  218 
what  is  signature  of  witness,  219,  ^-u 
Tignature  f?  witness  can  not  be  made  by  other,  220 
place  of  signature  by  witness,  221 
order   in  which   signatures  must  be  affixed,  222 
necessity  of  '-attestation  clause    223 
necessity  of  stating  residence  of  witnesses,  ^--i 
publication,    definition,    225 
what  constitutes  publication.  226 
necessity    of    publication,    227 
witnesses  need  not  know  contents  of  will,   ^-' 
Ses  nofdispense  without  acknowledgment  of  signature,  2-8 


1114  INDEX. 

(References  are  to  sections.) 

EXTRINSIC    EVIDENCE.      Eflfect   of,    in   determining   nature   of    iuBtru- 
ment,  53 

to   identify   beneficiary,    169 

admissible  to  show  that  name  in  middle  of  will  was  meant  as   sig- 
nature, 181 

to  show  intention  of  testator  to  marry  inadmissible  to  affect  revoca- 
tion,  281 

of  intention  to  omit  inadmissible,  294 

of   date   of   alteration,   433 

to  show  that  "children"  includes  all  issue,  524 

shows  that  "children"  includes  illegitimates,  525 

to  show  that  "nieces"  includes  grandnieces,  531 

not  admissible  to  create  election,  717 

when  admissible  to  charge  legacy  on  realty,  755 

in  what  cases  offered,  816 

comparison  of  wills  and  testaments,  816 

of  intention,  when  admissible,  816 

not  admissible  for  reformation,  816 

admissible  to   show   surrounding   facts   and   circumstances,   817 

effect  of  ambiguity  upon  admissibility  of,  817-820 

admissible  to  identify  persons  and  property  referred  to  in  will,  818 

incorrect  or  ambiguous  description  of  property  or  beneficiaries,  819 

direct  evidence  of  intention  of  testator,  819,  820 

contradiction  of  intention  of  testator,  820 

defective   description,   821 

which  fails  to  explain  will,  822 

distinction  between  patent  and  latent  ambiguities,  823 
EXTRINSIC  WRITINGS.     Incorporation  of,  in  will,  162-169 


F 

"FACT."     Meaning  of,  in  insane  delusion,   105 

no  revocation  by  mistake  of,  258 
FACTS  AND  CIRCUMSTANCES  admissible  to  aid  construction,  817 
FAILURE   OF   ISSUE,   if  indefinite,   creates   estate-tail,  564 

S^e  Issue. 
FAILURE  of  gift  for  education  at  specified  college,  because  of  non-erec- 
tion of  college,  537 

of  conditions,  075 
FAITH  CURE.     Belief  in,  not  insane  delusion,  111 
FALSA  DEMONSTRATIO  NON  NOCET.     See  Misdescription. 
FALSE  DESCRIPTION  does  not  vitiate  gift,  when,  819 
FALSE  STATEMENTS.     See  Misdescription,  Misnomer,  Mistake. 
FAMILY.     Once  held  indefinite,  528 

when  including  those  resident  at  homestead,  528 

where   equivalent  to   "children,"   528 

where  held  not  to   include  stepchildren,  528 

w'hether  including  wife  or   not,   528 

where  meaning  "stock,"  528 

when   including  wife,  511 

of  person,  excludes  such  person,  528,  604 

includes   adults,   604 

gift  for   support  of,   income  to  be  kept  together,  604 

gift  to  one  and  his,  685 
FARM.     Gift  of  personal  property  on,  passes  crops,  494 


INDEX.  ^^^^ 


(References  are  to  sections.) 
FATHER  OF  BENEFICIARY.     Will  drawn  by,  no  presumption  of  undue 

influence,  414  ,         i    ^    oic 

FEDERAL  COURT.     Jurisdiction  of,  in  probate  and  contest,  315 

FEE  SIMPLE.     How  cut  down  to  life  interest,  474 

words   of   inheritance   not   necessary   "OW'    182     o62 

prima  facie  now  passes  by  devise  of  realty,  482 

passes  by  residuary  clause,  482 

passes  by  absolute  gift  of  rents,  491 

at  common  law,  prima  facte  not  given.  560 

words  of  limitation  necessary  at  common  law,  560 

"heirs"  not  necessary,  561 

passed  by  gift  "forever,"  561 

passed  by  gift  "absolute,     561 

passed  by  charge  at  common  law,  561 

mssed  by  gift  of  remainder,  561 

treated  by'gift  to  "children"  or  "lineage  "561 

Sodern  statutory   rule,   prima Jacte  created,   562 

indefinite  devise  gives,  562,  5<0 

effect  of  other  gifts  in  same  will,   56-, 

gift  of  "dower"  is  prima  facte  fee,  o6Z 

not  cut  down  by  adding  power  of  devise,  o62 

^vdieTS' modern  statutes  created  by  gift  which  at  common  law 

created   estate-tail,   568 
gift  over  reduces,  to  life  estate,  5/4 
so  limited  as  to  be  life  estate  only,  574 

El  ^^vit:.s^%7^i:z  s^:L^ofSi^.ng  ufe  of 

nof  reduced  U'life  estate  by  recommendation  to  beneficiary  to  dispose 

■    reduci^   to' life_  estate   by   mandatory   direction   to   first   taker   as   to 
disposition,  574  _ 

not  reduced  to  life  estate  by  power  f^  «*lf'  J  f 
when  shown  by  power  of  sale,  m  indefinite  gift,  5/5 
wh  n  power  o/ sale  does  not  ^how  intention  to  create,  575 
not  created  by  addition  of  limited  power  of  sale    ^o  life  estate    5/0 
whethe?  creatid  by  adding  general  power  of  sale  to  life  estate,  576 
passes  absolute  interest  in  personalty,  595 
Wy  be  created  by  life  tenant  under  PO^er    696 
on  condition.     See  Conditions.     See  bHELLEY  s  Case,  kul*. 

FEE  CONDITIONAL,  563 

See  Conditions,  Fee  Iatl. 

FEE  TAIL,  defined,   564 
how   created,   564 
not  favored  in  construction,  564 
words   creating;    "heirs   of   body.   ^^564 
gift  over  on  death  "without  heirs,     564 

"wfflSut'issue"  if  indefinite  f^^^^^^  ^^^X^^',;'*^ c\,e    564 
not  changed  to  fee  simple  by  rule  in  .f;^"^>  ^i-^'^' 
when  created  by  gift  tx>  A  and  his  children,  567 

8ce  Wild's  Case.  •      i     cpq 

under  modern  statutes  where  changed  to  fee  simple,  568 
where  Hfe  estate  in  first  taker,  fee  simple  m  remainderman    569 
wiere  fee  tS  in  first  taker,  fee  simple  in  remainderman,  569 
created  by   indefinite   failure   of   issue    591 
in  personalty  is  absolute  interest.   595 


1116  INDEX. 

(References  are  to  sections.) 

FEELINGS  of  testator  for  beneficiaries  and  relatives  admissible  as  to  ca- 
pacity, 387 

evidence  of  change  in,  held  inadmissible  as  to  capacity,  o99 

declarations  of  beneficiary  admissible  to  show,  401 

admissible  on  question  of  spoliation,  445 
FELO  DE  SE,  will  of,  384 
FELON,  will  of,  86 

gift  to,  155  _ 

competency  as   attesting  witness,    199,   360 

capacity   to   contest   will,   325 
FEME   COVERT,  will   of,   89-93 

/S'ee  Testamentary  Capacity. 
FEAIE  SOLE,  revocation  of  will  of,  by  marriage,  284 
FEOFFMENT,  effect  of,  necessity  of,  on  law  of  w.ills,  10 
FENDALISM,  effect  of,  on  law  of  wills,  9 

abolition  of,  16 
FIGURES.     Holographic  will  may  indicate  amount  of  legacy  by  figures, 

230 
FILING  of  statutory  election  necessary,   729 

what  constitutes,  730 
FIRE  INSURANCE  does  not  pass  under  residuary  clause,  507 
FIRST  COUSIN.     See  Cousin. 
FIXTURES,  whether  included  in  furniture,  492 

/See  Realty. 
FLATTERY,   when   undue   influence,    128 

FLOWERS,  whether  "articles  of  domestic  use  and  ornament,"  495 
FORCE,     See  Duress. 

FORECLOSURE  of  mortgage,  apportionment  of  profits  between  life  tenant 
and  remainderman,   602 

as  adeeming  gift  of  mortgage,  483 
FOREIGN  COUNTRY,  law  of.     *S'ee  Law  Controlling  Will. 
FOREIGN  JUDGMENT  of  Probate,  conclusive,  335 

FOREIGN  LANGUAGE,  correctness  of  translation   from,  not  determined 
by  judgment  in  contest,   341 

will  written  in,  is  valid,   160 
FOREIGN  LAW,  to  what  extent  court  will  take  notice  of,  41 

presumption  in  absence  of,  41 

when  court  will  not  determine,  807 
Bee  Law  Governing  Will. 
FOREIGN  PROBATE,  effect  of,  335 

See   Foreign    Will. 
FOREIGN  WILL,  definition,  355 

probate  of,  355-358 
FOREIGNER,  will  of.     See  Alien,  Denization. 
FORGERY  (of  will),  burden  of  proof,  370 

evidence  of,  378 

expert   evidence  admissible,    378 
"FOREVER,"  passed  fee  at  Common  Law,  561 
FORFEITURE,  right  to.  not  devisable,   147 

of  devise  declared  where  testator  is  murdered  by  devisee,  687 
FORGETFULNESS  of  subscribing  witness  as  to   facts  of  execution  does 

not  invalidate  will.  372 
FORM    (of  will).  .S'ee  Extrinsic  Elements. 


INDEX.  1117 

(References  are  to  sections.) 

FORMALITIES  of  valid  will,   157  et  seq. 

Hee  Extrinsic  Elements. 
FORMS,  application  for,  admission  to  Probate,  318 

order  fixing  time  for  hearing,  319 

notice  of  hearing,   315) 

petition    in   contest,    328 

journal  entry  making  issue,  329 

charge  of  court,  333 
FORTUNE,  gift  of  entire,  475,  476 
FRAUD,  nature  of,   122 

classes,  122 

fraud  in  execution,  123 

fraud   in   inducement,   124 

when  amounting  to  undue  influence,  127,  128 

when  not  amounting  to  undue  influence,  132 

preventing  act  of  revocation,   255 

inducing  legatee  to  accept  legacy  does  not  bar  contest,  326 

judgment  in   contest  can  not   be  attacked   collaterally   for,   340 

contract    with    reference    to    probate    which    defrauds    heir    not    party 
thereto,  void,  340 

as  ground  for  revocation  of  written  election,  731 
FREE   AGENCY,    influence    must    overpower,    to    constitute    undue    influ- 
ence,  127 

"FREE  FROM  HUSBAND'S  CONTROL,"  whether  creating  equitable  sep- 
arate estate,  624 
FREEHOLD  not  cut  down  by  use  of  word  "loan,"  570 

FRIEND,    will    in    favor   of,    not   presumed    to   be   product    of    undue   in- 
fluence, 417 
FRIENDLESS,  gift  to  home  for,  is  charity,  648 ' 
FRIENDLY  SOCIETY,  gift  to,  643 

FRIENDS,  donation  for  hospitality  to  members  of  Society  of,  054 
"FROM  AND  AFTER"  DEATH  OF  LIFE  TENANT,  gift,  rests  at  once,  659 
FRUCTUS  INDUSTRIALES,  disposition  of,  494 
FUND,  gift  of,  carries  interest,  499 

division  of,  774 
FUNERAL   EXPENSES,   provision   for,   651 
"FURNITURE,"  once  included  everything  used  to  furnish  a  house,  492 

modern    use,    492 

does   not    include   money,    492 
FUTURE-BORN  CHILDREN,  effect  on  revocation  of  will,  282,  287-296 

may  take  where  gift  is  to  class,   661 
FUTURE  ESTATE,  can  be  devised  when,  145-147 
FUTURE  EVENT.     See  Condition. 

FUTURE  MARRIAGE,  when  children  by,  may  take,  528,  085 
FUTURE  USES.     See  Trusts. 


G 

GARDEN.     See  Realty.     ^ 

GARDENER,    gift    to,    535 

GARRULITY,  efi'ect  of,  on  testamentary  capacity,   102 

GAS   LEASE,   588 

GENERAL  BEQUEST,  when  passing  life  insurance,  500 


1118  INDEX. 

(References  are  to  sections.  1 

GENERAL  CLAUSE.     See  Residuary  Clause. 
GENERAL  DESCRIPTION,  modified  by  particular,  502 
GENERAL  GIFT,  when  valid  exercise  of  power,  698 
GENERAL  GUARDIAN  appointed  by  will,  45 
GENERAL  INTENT  prevails  over  particular,  462,  463,  616 
GENERAL    LEGACY    defined,    767 

examples,    767 

construction  favors,   767 

abate  before  specific  abate  pro  rata,  773 

not  subject  to  ademption,  781 
GENERAL  RESIDUARY  CLAUSE,   505 
GENERAL  PERSONAL  ESTATE,  gift  of,  475,  476 

GENERAL  POWER,   effect  of  conferring.     See  Life  Estate,  Powebs. 
GENERAL  WORDS,  effect  of,  462,  463,  500,  502,   616,   698 

GENUINENESS  of  will  conclusively  established  by  judgment  in  contest, 
341 

GESTATION,  period  of,  added  to  time  of  postponing  vesting,  628 

GESTURES  equivalent  to  acknowledgment,  205 

GIFT  can  not  be  made  out  of  legacy  for  support  only,  696 

inter  vivos,  whether  ademption,   783 
GIFT  OVER,  after  fee,  held  repugnant.  577 

creates  life  interest  in   personalty,  597 

shows  that  first  interest  is  vested,  659 

effect  of,  on  validity  of  condition  restraining  contest,  683 
GOOD  FAITH  necessarj'  to  valid  exercise  of  power,  576 

See  Powers. 
GOOD  HABITS,  condition  precedent  to  payment  of  gift,  679 
"GOODS."     See  Household  Goods. 
GOVERNMENTAL  ACTION,  gift  dependent  on,  is  perpetuity,  636,  640 

gift  contingent  on  future,  violates  rule  against  perpetuities,  626 
GOVERNMENT  BONDS,  gift  of,  497 
GRATITUDE,  not  necessarily  undue  influence,  417 
GRATUITY,   hope   of   receiving,   is   not  devisable,    140 
GRANDCHILDREN,    when    equivalent   to    heirs,    519 

not  included  with  children,  522 

unless  by  context,  524 

included  under  children  by  context,  524 
GRANTEE  of  heir  can  not  contest,  325 

of  devisee  may  defend  in  contest,  327 

GRAVE,   gift  for  adornment   of,  valid,   651 

GREAT-GRANDCHILDREN  included  under  "children"  by  context,  524 

GREAT-NEPHEW   included  under  nephew  by  context,  531 

GREAT-NIECE  included  under  niece  by  context,  531 

GREEK  LAW,  will  at,  6 

GROUND,  gift  of,  how  described.     See  Realty. 

GROUND  RENT  reserved  on  deed  of  realtv  is  after-acquired  interest,  278 
gift  of,  491 

GROWING  CROPS  pass  by  gift  of  personalty  on  farm,  494 

GUARDIAN,  whether  appointment  of,  avoided  by  invalidity  of  other  pro- 
visions,  296 


INDEX.  1119 


(References  are  to  sections.) 

GUARDIANSHIP,  eflfect  of,  on  testamentary  capacity,  115 
one  under,  can  revoke,  competent,  257 
admissibility  of  record  of,  to   show  capacity,  402 

GUIDING,  hand  of  witness.  219 

hand  of  testator  is  signature  by  testator,  180 


H 

HABITUAL  DRUNKARD,  testamentary  capacity  of,  112 

susceptible  to  undue  inlluence,  428 
HALF-BLOOD  included  under  "brother  and  sisters,"  530 
HANDWRITING.      Holographic    will    must    be    entirely    In    handwriting 
of   testator,    230 

expert  evidence  upon,  378 

evidence  of  persons  familiar  with,  378 

comparison  of  genuine  papers,  378 

clause  in,  may  rebut  presumption  of  undue  influence,  414 

of  testator  may  be  proved  by  beneficiary,  446 
HARDWICKE'S,    (LORD),  explanation  of  ademption,  784 
HATRED  is  not  insane  delusion  if  based  on  any  evidence,  105,  106 
"HAVING  NO   CHILD,"   construction   of,   289 

HEARSAY  of  facts  of  execution  inadmissible,  429 
of  contents  of  spoliated  will,  440 
declarations   of   strangers,   452 

HEIR.     Whether   illegitimate   adopted   son   is   heir,   29 
agreement  to  make  one  heir  not  enforceable,  73 
contract  to  allow  one  to  heir  estate,   77 
held  in  equity  for  contract  of  ancestor  to  make  will,  79 
is  competent  witness  to  will,  194 
gift   to,   not   a   naming,   292 
may  contest,  325 

if  party  entitled  to  contest,  when  can  not  contest,   325 
favored  in  construction,  467 
may  include  devisee,  479 
primary  meaning,   512 
when  including  husband  or  wife,  513 
may  include  heir  apparent,  514 

may  include  those  who  would  be  heirs  if  their  parents  were  dead,  514 
meaning  extended  by  context,  514 
meaning  of,   in  gift  of  personalty,   515 
same  meaning  presumed  in  whole  will,  515 
gift   of   converted   property   to,    515 
when  equivalent  to  next  of  kin,   515 
when   including  legatees,   516 
when  restricted  to  children,  517 
when   restricted   to   heirs  of   the   body,   518 
when  restricted  to  grandchildren,   519 
when   including   illegitimates,   520 
gift  to,  when  class  fixed,  547 

gift  of  remainder  to,  when  first  taker  is  an  heir,  547 
gift  to,  requires  per  stirpes  distribution,  555,  556 
used  as  descriptive  only,  556 

"equally  to,"  whether  per  capita  or  per  stirpes,  557 
^hare   and   share   alike,   557 
when   words    of   put-chase,    561 
not  necessary  at  common  law  to  pass  fee,   561 


1120  INDEX. 

(References  are  to  sections.) 

HEIR— Continued. 

prima  facie  word  of  limitation,  561 

of    body,    estate-tail,    564 

without   heirs,    estate-tail,    564 

words  of  limitation  by  Rule  in   Shelley's  Case,  565 

devise  to  same  persons  who  take  as,  583 

gift  to,  shows  intention  to  pass  as  realty,  705 

right  of,   as  affected   by  election,   733 
/S'ee   Fee. 

as  word  of  limitation,  561,  564 
See  Lapse. 

as  word  of  purchase,  561,  564 
HEIR  APPARENT  included  in  "heirs,"  514 
"HEIRS  BY  BLOOD"  when  including  illegitimates,  520 
HEIRS  OF  BODY  when  equivalent  to  heirs,  518 

when   including  adulterine  bastard,   520 
/Sec   Fee-tail. 
HENRY  GEORGE.    Gift  to  promulgate  views  of,  valid,  653 
HEREAFTER  TO  BE  BORN,  548 

HEREDITAMENTS   made  devisable  by  Wills  Act,    15 
HEREDITARY  INSANITY  admissible  in  evidence,  395 
HEREINBEFORE,    474 
HEREINBEFORE  DISPOSED  OF.    Defined,  466 

construction  of  particular  residuary  clause,   746 

HISTORY   OF   LAW   OF   WILLS,   where   property   rudimentary,    3 

effect  of  advance  in  property  rights,  4,  5 

at  Greek  and  Roman  law,  6 

effect  of  Roman  law  on  English  law,  7 

early  English  law,  8 

wills  of  realty,  8-16 

feudalism,  9,  10 

abolition   of   will    by    feudalism,    10 

statute  de  donis,  11  ' 

local  custom,   12 

equity,  13 

statute  of  uses,  14 

statute  of  wills,   32  Hen.  8   C.   1,   15 

abolition   of   feudalism,    16 

testaments   of    personalty,    17-19 

early  English  law,   17 

what  property  disposable,  18,  19 

in  United  States,  20 

of  testamentary  capacity,  84 

formalities   requisite   for   wills   under   Wills   Act,    157 

formalities  requisite  for  testaments  at  ecclesiastical  law,  157 

nuncupative  wills,  232 

republication,   304 

probate,  312 

rule  against  perpetuities,  626 
HISTORY  OF  TESTATOR  admissible  on  question  of  capacity,  394,  39? 

within  limits  of  discretion  of  courts,  394 

rule  as  to  history  of  family,  395 

HOLOGRAPHIC  WILL. 
I — In  general — 
definition,  229 

origin  of,  at  Roman  law,  229 
informal    writing   may   be,    229 


INDEX.  1121 

(References  are  to  sections.) 

HOLOGRAPHIC  WILI^-Continued. 
11 — Extrinsic  formalities — 

witnesses  not  necessary,  230 

must  be  entirely  in  handwriting  of  testator,  230 
must  usually  be  dated,  230 
must  be  signed  by   testator,  230 
place  of  deposit  of  will,   231 
may  revoke  will  of  ordinary  type,  264 

holographic   codicil    does   not   republish   will   not   in   handwritijig 
of  testator,  307 
III— Evidence- 
burden  of  proof,  446 

existence  of  will  among  valuable  papers,  446 
beneficiary,  competent  witness,  446 
declarations    of    testator,    446 
HOME.     Nuncupative  will  made  in  absence  from.  235 
whether  gift  of,  includes  support,  604 
gifts  to  homes  for  destitute  are  charities,  648 
HOME  PLACE.     Gift  of,  488 
gift  of  articles  upon,  494 
evidence  in  devise  of,  819 
HOMESTEAD  rights  not  devisable,   138 
what  passes  by  gift  of,  488 
gift  for   support  at,  terminates  when,   604 
election  between  homestead  rights  and  gifts  by  will,  716 
HOPE.     Expressions   of,   eflfect  on   will,  59 

See  Precatory  Trusts. 
HORSES.     \Mien  not  stock,  497 
HOSPITALITY.     Gift  for,  not  charity,  654 
HOSPITALS.     Gifts  to  free,   are  charities,   647 
HOSTILE  WITNESS.     When  not  allowed  to  defeat  will,  374 

conduct   at   probate   may   determine   character,    374 
HOSTILITY.     Mistake  as  to  hostility  of  heirs,  120 
HOUSE.     Gift  of  contents  of,  494 
HOUSEHOLD  FURNITURE  AND  EFFECTS  does  not  pass  jewelry,  478 

See  Furniture. 
HOUSEHOLD  GOODS.     Meaning  nearly  synonymous  with  furniture,  493 
HOUSEHOLD   SERVANTS.     Gift   to,   who   included,   534 
HUSBAND  might  consent  to  testament  of  wife,  89 
devise  to  husband  by  wife,  where  invalid,  156 
of   beneficiary,    competency    as    subscribing   witness,    197 
of  testatrix,  competency,  200 

not  presumed  to  exert  undue  influence  over  wife,  410 
relations  with  wife  before  marriage  do  not  show  undue  influence,  412 
of  beneficiary,   will  drawn  by,  414 
meaning.  511 

when  included  in  "heirs,"  513 
right  of  over  separate  estate  of  wife,  624 
HUSBAND   AND   WIFE.      Joint   will    of,    67 

HYPOTHETICAL  QUESTIONS  as  to  insanity,  may  be  put  to  an  expert, 
389 
form   of,    389 


1122  INDEX. 

(References  are  to  sections.) 
I. 

IDENTIFICATION  of  property  and  beneficiaries  admissible,  818 
IDIOT,   100 

See  Testamentary  Capacity. 
IGNORANCE  of  testator  as  to  contents  of  will,  admissible,  428 

of  existence  of  will  gives  right  of  election  after  death  of  beneficiary, 
719 

of  facts  prevents  election  from  binding,  727 
ILLEGAL  CONSIDERATION  does  not  support  contract  to  make  will,  72 
ILLEGAL   OBJECT.     See   Illegality. 
ILLEGAL  PURPOSE.     Trust  for,  is  void,  610 
ILLEGALITY.     Construction  avoiding,  preferred,  621 

avoided  by  construction  if  possible,  658 

of  purpose,  defeats  power,  690 

partial,  does  not  affect  separable  provision,  787 
ILLEGITIMATES.     Gift  to  illegitimates  in  esse,  156 

gift  to   illegitimate  not  in   esse,    156 

recognition   of,   as   affecting  revocation,   290 

children,    when    included    under    "heirs,"    520 

not  included  under  children,  522 

unless  subsequently  legitimated,   522 

included  imder  "children"  by  context,  525 

not  included  in  "relatives,"  529 

unless   by  context,   529 

not  included  in  cousins,  532 
ILLITERACY    (of  testator).     Effect  on  construction,  471 
ILLNESS.     What  is  last  illness,  234 

ILLUSORY  APPOINTMENT.     Equity  relieves  against,  691 
IMBECILE,   101 

See  Testamentary  Capacity. 
IMMEDIATE  GIFT  vests  at  death  of  testator,  656 
"IMMEDIATE  ISSUE  OR  DESCENDANTS,"  meaning,  633 
IMMOVABLE   PROPERTY.      Law   controlling,   28 

See  Realty. 
IMPEACHMENT  of  hostile  attesting  witness,   374 
IMPLIED  REVOCATION.     See  Revocation. 
IMPLICATION.     Gift  by,  468 

when  remainder  created  by,  468 

from  erroneous  recitals,  468 

of  power  from  recital,  468 

power   of   sale   created   by,    689 

power  of  sale  by,  may  work  conversion,   703 
IMPORTLTNITY.     When  not  undue  influence,  127 

promise   to   desist   from,    not   sufficient   consideration    for   promise   lo 
make   will,   72 
IMPOSSIBILITY  of  event,  when  terminating  trust,  616 

of  performance  of  condition,  partv  causing  can  not  take  advantage  of, 
678 
IMPROVEMENTS.     Cost  of,  how  borne  by  tenant  for  life  and  remainder- 
man,  602 

"IN  ADDITION  TO."     Cumulative,    798 
"IN  CASE  OF  DEATH,"  676 

"IN  LIEU  THEREOF."     Substitutional  gift,  798 
"IN  ODIUM  SPOLIATORIS,"  434 


INDEX.  1123 

(References  are  to  sections.) 
"IN  PLACE  AND  STEAD  THEREOF."     Substitutional  gift,  798 
"IN  TERROREM."     Whether  condition  is,  G80,  693,  085 
INCIDENTS  of  substitutional  and  cumulative  legacies,   800 
INCLUDING   meaning  of,   794 
"INCLUSIVE,"  meaning  of,  794 
INCOME.     Gift  of,  pass  absolute  property,  491 
gift  of,  for  life  passes  life  estate,  491 
undisposed  of,  passes  under  residuary  clause,  507 
gift  of,  paisses  absolute  interest  in  personalty,  595 
gift  of,  for  life  only,  passes  life  estate,  597. 
gift  of,  apart  from,  principal,  599 
how  created,  599 
not  limited  to  support,  599 
duration  of  gift,  600,  604 
time  from  which  income  estimated,  601 
how  ascertained,  602 
taxes,   602 

stock    dividends,    602 
charge  of  support  upon  income,  603 
who  may  be  beneficiary,  604 
whether  income  or  support  passes,  604 
apportionment  on  death  of  beneficiary,  606 
distinguished  from  annuity,  607 
charge  of  debts  and  legacies  on,  759 
INCOMPETENT    witness,    signature    of,    does    not    invalidate   will    other- 
wise good,   190 
communications   with   decedent,   when,   361 
court  will   elect  for,  719 
INCOMPLETE   DESTRUCTION.     See  Revocation. 
INCOMPLETE  WILL.    Validity  of,  47,  48 
INCONSISTENCY  in  description,  reconciled  if  possible,  503 

efTect   of,    between    two    residuary    clauses,    510 
INCONSISTENT.     Later  will  revokes  if,  268 
INCONSISTENT  PROVISIONS  reconciled  if  possible,  462,  463,  470 

later  prevails,  470 
INCONSISTENT  RIGHTS.     Election  between,  715 
INCONSISTENT  WILLS.     Whether  probate  of,  involves  contest,   322 
INCORPORATION  of  extrinsic  writing  in  will,   162.   169 

destruction  of  document  made  part  of  will  by,  does  not  revoke  will, 

252 
republication    need    not    effect,    311 
INCORPORATION  of  partnership,  efli'ect  of,  on  gift,  497 
INCREASE.     8ee  Income. 

INCUMBRANCE  on  realty,  when  primarily  payable  out  of  personalty,  765 
INDEFINITE   DEVISE.      Duration   determined   by   direction   to   support, 

573 
INDEFINITE  FAILURE  OF  ISSUE  affecting  Rule  in  Shelley's  Case,  572 
gift  over  on,  not  perpetuity,  631 
See  Issue. 
INDEFINITE  GIFT  of  acreage,  when  passing  estate  in  common,  588 
INDEFINITE  TRUST.     See  Misdescription,  Misnomer,  Uncertaintt. 
INDEFINITENESS.     Will  void  for,  48 

of  beneficiary  avoids  gift,  583 
INDETERMINATE   WORDS.      See   Misdescription,    Misnomer,    Uncer- 
tainty. 


1124  INDEX. 

(References  are  to  sections.) 

INDIVIDUALS.     Distinction   between,   gifts   to,   and   gifts   to   class,   540- 

542 
INDORSEMENT.     When  testamentary,  58 
INDUCEMENT.     Mistake  in,  120 

INDUSTRY  of  legatee  as  condition  to  payment  of   legacy,   679 
INEQUALITY  of   will   not   undue   influence,    132 

INFANCY,  88 

See  Testamentary  Capacity. 
INFANTS  not  barred  by  statute  fixing  period  for  contest,   321 
INFLUENCE  not  always  undue,  127 
See  Ukdl'e  Ixfluexce. 
INFORMAL  INSTRUMENT  as  revocation  of  will,  263 
INFORMAL  ^VILLS,  58 

INFORMAL  WRITINGS  may  be  testamentary,  -229 
INFORMATION.    See  Data. 
INHABITANTS  of  a  town  competent  witnesses  to  will  devising  to  town, 

194 
INHERENT  ELEMENTS  OF  WILL.     See  Will,   Elements  of. 
INHERITANCE.     Necessity  of  words  of,  at  common  law  to  create  fee,  560 

at  modern  law,  562 

what  are  words  of,  561 
INITIALS  of  testator  may  be  good  signature,   172 

signature  by  initials  sufficient  for  signature,  219 
INJUNCTION  against  revocation  of  will  for  value.  "^ 

against  probate  not  allowed,  315 
INJUSTICE  of  will  not  undue  influence,  132 

if  will  does  not  show  want  of  capacity,  385 

but  may  strengthen  other  evidence,  385 

of  will,'  court  can  not  avoid,  by  ignoring  intention,  464 
INK.     Signature  in  different  ink,  not  conclusive  as  forgery,  379 
INSANE  person  can  not  revoke,  257 

not  barred  by  statute  fixing  period  for  contest,  321 
See  Testamentary  Capacity,  Insanity. 
INSANITY.     Slight  insanity  does  not  destroy  testamentary  capacity,   94 

what  degree  of  insanity  destroys  capacity,  95 

See  Testamentary  Capacity,  103,   109 

charge  of  court  in,  33^3 

adjudication  of,  admissible  in  evidence,  402 
"INSTEAD  OF"  substitutional  gift,  798 
INSOLVENCY.     Condition  against,  of  legatee. 

See  Conditions,   Spendthrift,  Trusts. 

INSTITUTION.     Contract  to  devise  to,  70,   76 

INSTRUCTIONS  in  drafting  mil  not  admissible  to   show  intention.   820 
See  Data. 

INSTRUMENT.     Incorporation  of  extrinsic,   162-169 

INSURANCE   (fire).     Insurance  does  not  pass  under  residuary  clause,  507 

INSURANCE    (life).     Payable  to  other  than  testator,  not  devisable,   136 

INSURANCE  POLICY.     When  assignment  of  held  will,   56 

INSURED  can  not  bequeath  policy  unless  payee,  136 

INTELLIGENCE.     Degree  of,  required  to  make  will,  94 


INDEX.  1125 

(References  are  to  sections.) 

INTENTION   (of  testator).     When  testamentary,  though  informal,  58 
to   make  written   will   invalidates   nuncupative   will,   23b 
to  i^Joke  necessary  to  revocation  by  act  manifest  on  instrument,  25G 
to  revoke  must  appear  on  revoking  instrument,  2bb 
to  omit  child,  how  shown,  292 
to   be   deduced   from   words   of   wnll,    400 
paramount  rule  of  construction,  46 1 
to  be  deduced  from  whole  will,  402 
to  comply  with  law  presumed,  405 
to  dispose  of  entire  estate  presumed,  406 
to  disinherit  not   shown  by  negative  words,   407 
to  pass  after-acquired  realty,  489 
of   testator   to  prevent   lapse,   741 
of  testator  as  to  order  of  abatement,  771 
of  testator  to  deduct  advancements,  787 
of  testator  that  legacy  be  paid  at  certain   trnie,  802 
of  testator  to  be  deduced  from  written  words,  810 
of  testator,  direct  evidence  of,  810 
surrounding    facts,    etc.,    admissible    to    sh^w,    817 
direct  evidence  of,  whether  admissible,  hlU,  S^O 
INTEREST   on   specific  fund  passes,   499 

when  context  shows  intention  not  to  pass,  4JJ 
does  not  pass  by  gift  of  amount  equal  to  specific  fund,  499 
undisposed   of,   passes   under   residuary   clause    50/ 
not  allowed  on  advancements  unless  specifically  directed,  788 
INTEREST  (on  legacies).    /See  Legacies. 

INTEREST    (of  beneficiary).     Of  party  contesting  must  be  proved,  325 
erroneous  charge  as  to,  reversible  error,  333 
declarations  admissible  if  against  interest  of  party  making  them,  401 
but  not  against  interest  of  others,  401 
of   beneficiary,   nature   of,   022 
INTEREST  OF  TESTATOR.     Effect  of  misstatement,  487 
INTERESTED  WITNESS.     See  Attesting  Witness,  Competency. 
INTERLINEATION.     Witness  to,  not  witness  to  whole  will,  217 
INTERMEDIATE  RENTS  AND  INCOME.     See  Income. 
INTERPRETATION.     Defined,  458 
INTERSTATE  LAW.     Sec  Law  Governing  Will. 
INTESTACY.     Result  from  failure  of  part  of  residuary  clause,  508 
distribution  as  in,  favored,  553 
gift  as  in,  559 
INTESTATE  PROPERTY.     What  is,  466 
devolution   of,    407 

effect  of  change  of  law  upon  devolution  ot,  40 i 
share  in,  as  affected  by  election.  73.5,  7.36 
when  lapsed  gift  is  intestate  property,   <44 
INTIIMACY.     See  Friend. 
INTOXICANTS.     Prohibition  of,   in  club  for  educational  purposes,   64fa 

INTOXICATION,  112 

See  Testamentary  Capacity. 

not  presumed  to  continue,   384  ,   ,     ,    ^         ■      j     •     ■u^^    -jof; 

evidence  of  intoxication  of  ancestors  of  testator,   inadmissible,   395 

admissible  as  showing  undue  influence,  428 
INTRODUCTORY  CLAUSE  as  creating  charge,  764 

as   rebutting   presumption   of   satisfaction,    /9/ 
INVALID  CONVEYANCE  effect  as  revocation,   278 


1126  INDEX. 


(References  are  to  sections.) 


INVALID  WILL.     No  rights  accrue  under,  158 

INVENTORY.     Whether  made  part  of  will,  163,  166 

INVESTMENT.     Power   of   trustee  as  to,   not   defeated  by  alienation   by 

beneficiary,  622 
ISSUE    (in  contest).     Whether  general  or  special,  329 
"ISSUE"  meaning  lineal  descendants,  526 

alternative   meaning,    children,    526 

does  not  include  adopted  children,  526 

and  "descendants"   synonymous,  527 

calls  for  per  capita  distribution,  553 

gift  to,  wlien  requiring  per  stirpes  division,  555 

to  A,  and  issue  cre:ites  estate-tail,  564 

failure  of    definite,  what  is,   591 

indefinite,   what   is,   591 

"dying  without,"  meaning  of  in  gift  of  personalty,  591 

dying  without,   gift   of   personalty,   592 

gift  of  realty,   593 

fee-tail   at  common   law,   593 

dying  without,   modern   rule,   594 

"dying   without,"   definite   failure,   at   what   time   failure   must   exist, 
594 

meaning  of  in  statute  against  perpetuities,  433 

condition   as   to  birth   of,   677 
ISSUE.     Male.     See  Issue. 
ISSUE.     Death  without.     See  Issue,  Death, 


JEALOUSY  not  insane  delusion  if  founded  on  evidence,  105 
JEWELRY.     Whether  "furniture,"  492 

not   "household   goods,"   493 
JOINT  INTEREST  can  not  be  devised,   140 

distinguished   from   others,   379 

whether  created  in  equity  or  not,   622 
JOINT  TENANCY  favored  at  common  law,  589 

abolished  at  modern  law,  590 
JOINT  TENANTS.     Counted  as  one    life  in  determining  perpetuities,  G37 
JOINT  WILLS.     What  wills  are  not  joint,  65 

what  wills  are  joint,  66 

validity  of  joint  wills,  67 

admissibility   to   probate,    68 

revocability,  69 
JOURNAL  ENTRY.     Where  issue  made  by,  329 
JOURNEY\     Will  in  contemplation  of,  62,  63 
"JUDGE  OF  PROBATE,"  474 

JUDGMENT    (in  contest).     Form  of,  335 
open  to  direct  attack,  337 
appeal   from   judgment,    338 
error  to  judgment,  338 
collateral  attack  not  allowed,  339,  340 
except  where  judgment  is  only  prima  facie,   340 
upon  whom  order  of  probate  is  binding,  339 
judgment  is  conclusive  as  to  mental  capacity  of  testator,  341 
and  absence  of  undue  inflvience,  341 


INDEX.  1^27 

(References  are   to  sections.) 
JUDGMENT    (in  contest ) —Continued, 
and  genuineness  of  will,  341 
and  due  execution,  341  ^ 

except  in  certain  jurisdictions,  341 
conclusive  as  to  domicile  of  testator,  341 
and  notice,   341 

but   not   as   to   construction,    341 
or  validity  of  specific  bequests,  341 
or  capacity  of  devisee,  341 
or  translation  of  will  from  foreign  language,  341 

ISS^^gn^^nriA  contest  can  bind  part  of  the  parties  in  interest, 

whether   iud"-nient  refusing  probate  is   conclusive    343 
lieu  ol  on  share  of  life  tenant  is  divested  by  sale  under  power,  696 
JUDGMENT  CREDITOR  of  heir,  when  may  contest  will,  325 
JUDGMENT  DEBT,  whether  primarily  payable  out  of  realty,  765 
JUDICIAL  NOTICE  of   foreign  law  not  taken    41 

except  that  existence  of  common  law.  is  noticed,  41 
JUDICIAL  SALE  does  not  eflfect  conversion,  704 
JURISDICTION.     Judgment  of  court  without,  is  a  nullity,  341 
and  open  to   collateral   attack,   341  ^  ,    <.      q<i 

court  has  none,  to  admit  will  of  living  man  to  probate,  341 
of   suit   to   quiet  title,   807 
JURY.    No  constitutional  right  to,  in  contest,  331 
wiiere  indispensable  by  statute,   331 
in  nroceeding  to  admit  lost  will  to  probate,  353 
witness  Swng  opinion  must  not  usurp  function  of  jury,  392 
to  decide  on  fairness  of  will  in  undue  influence,  42b 
JUSTICE  OF  WILL.    See  Injustice,  Nature  (of  Will). 

K 

KIN.     See  Next  of  Kin,  Relations,  Relatives. 
KINDNESS  not  necessarily  undue  influence,  127,  41- 
IvNOWLEDGE  necessary  to  presence,  209 
of  facts  necessary  to  valid  election,  867 


LAND.     Description  of,  478,  494. 
See  Realty. 
conversion  of,  700,  705 

See  Conversion. 
charges  on,  749,  764  .        ,-a    cn-i 

LAND  OWNERSHIP.    Gift  to  advance,  theory  of,  valid,  653 
LAND  REFORM.     See  Land    Ownership. 
LANGUAGE.     Will  may  'be  in  foreign,  160 

SrWc'^vidlf  to'e'".in.     See  ExT„.s,o  Ev,o..c.. 

LAPSE.     Law  controlling  as  to,  37 
prevented  by   substitution.   535. 
so  in  case  of  death  without  issue,   6-6 
prevented  by  gift  over,  545 


1128  INDEX. 

(References  are  to  sections.) 

LAPSE— Continued. 

in  gift  to  class,  common  law  rule,  550 

prevented   by  gift  over,   550 

statute  against,  where  not  applying  to  gift  to  class,  551 

when  applied,  551 

gift  to  class,  context  shows  whether  lapse  is  intended,   551 

constructing,   preventing,   preferred,   551 

none,  where  life  tenant  dies  before  testator,  6G2 

definition,   738 

caused  by  death  or  incapacity  of  beneficiary  before  vesting,  739,  740 

as   by   dissokition   of   corporation,    740 

prevented   by   testator's   intention   to   the   contrary,    741 

modern  statutory  rules,  742 

in  what  cases   statutes   apply,   743 

who  are  relatives  and  descendants,  743 

devolution  of  lapsed  legacies  and  devises,  466,  744,  814 

when  passing  under  residuary  clause,  507 

>S'ec   Void    Legacies   aad   Devises. 
LAPSED  LEGACY.     See  Lapse. 
LAPSED  SPECIFIC  DEVISE.     See  Lapse. 
LAST  CLAUSE  given  effect  in  repugnancy,  503 
LAST  ILLNESS.     What  is,  234 

LAST  WILL  does  not  revoke  prior  consistent  will,  269 
LATENT   AMBIGUITIES,    823 
See   Ambiguities. 
LATER  CLAUSE  of  two  residuary  clauses  does  not  prevail,  510 
LAW.     Relation  of  law  of  wills  to  other  titles,  1 

no  revocation  by   mistake  of,   259 

contest  not  action  at,  323 

witness  can  not  give  opinion  involving  domestic  law,  392 

knowledge  of,   presumed,   465 

what  is  reading  law,  537 
LAW,    ALTERATION    IN,    21,    22 

See  Legislative  Control. 
LAW  OF  FOREIGN  COUNTRY.     See  Law  Governing  Will 

LAW  GOVERNING  WILL,  27 
In  general — 

Devises  of  realty — 

form  and   execution,   28 

construction,  29 

statutory  rule,  30 
Personalty — 

form  and  execution,  31 

change    of    domicile,    32 
Distinction  between  realty  and  personalty,   33 
Special   cases — 

where  sale  of  realty  necessary,  33 

in    conversion,    34 

trusts  of  realty,  35 

trusts  of  personalty,  35 

capacity  of   beneficiary,   36 

lapse,   37 

election,   38 

powers,    39 

contracts    to   make   will,    40 

dower,    7 1 3 
Presumption  in  absence  of  evidence  as  to  law,  41 


INDEX.  1129 

(References  are  to   sections.) 

"LAWFUL  BEGOTTEN  HEIRS"  equivalent  to  heirs  of  the  body,  518 

LAWFUL  HEIRS.     See  Heirs. 

LEAD   PENCIL.      Will   may   be   written   in,    159 

cancellation   by,   249 
LEASE,  renewal  of,  no  ademption,  781 
LEASEHOLDS.     Whether  realty  or  personalty,  33 

subject  to  Rule  in   Shelley's   Case,   564 
LEAVING   CHILDREN.     Gift   over  on   death   without,   676 
LEAVING  ISSUE,  591-594 
See  Issue. 

LEFT.     Gift  of  what  is,   implies   power   of   sale,   689 

LEGACY.     Definition,   2 
I — In   general — 

acceptance   of,   bars   contest,   326 

use  of   term,   474 

included  under  "debts  and  expenses,"  507 

primarily  payable  out  of  personalty,  747 
II— Charged 

may  be  charged  on  realty,  748 

how   charge   effected,   749-759 

express  charge,  749 

implied   charge,   750 

deficiency  of  personalty  as  charge,  750 

direction  for  support  creating  charge,  751 

direction    for   payment   of   money   as   charge,    752 

gift  at  valuation,   753 

liability  of  devisee   for  legacy  charged.   754 

blending  realty  and  personalty  in  residuary  clause,  755,   757 

exoneration   of  personalty,   756 

charge  of,  legacy  vipon  realty  specifically  devised,  758 

charge  of  legacy  upon  personalty  specifically  bequeathed,  759 

enforcement    of    lien,    760 

enforcement   of   personal    liability   of    devisee,    761 
III — Classes — 

general,   specific   and   demonstrative   distinguished,   767-770 

when  satisfaction  of  debt,   795,  797 

when  not  satisfaction  of  debt,  796 

whether  substitutional  or  cumulative,  798-800 

incidents  of  substitutional   and  cumulative  legacies,  800 
IV — Payment — 

how  payable,  801 

when  payable  if  will  fixes  time.  802 

acceleration   by   determination   of   particular   estate,    802 

acceleration   by   death   or  bankruptcy  of  beneficiary,  802 

postponement  of  payment  beyond  majority.  802 

wlien  payable  if  will   does  not  fix  time,  803 

except  annuities,   803 

and  gifts  to  infant  children,  803 
V — Interst  on   legacies — 

when    provided    for    by    will,    804 

when  not  provided   for  by  will,   804 

on   legacies   specifically  charged,   804 

effect  of  delay  on  account  of  contest,  804 

See  also  Ab.^tement,  Ademption,  Advancement,  Contribu- 
tion. 


1130  INDEX. 

(References  are   to  sections.) 

LEGACIES  FOR  VALUE.     Examples,  776 

order   of   abatement,    776 

of  legacies  given  under  a  power,  778 

of  devises,   777 
LEGAL  ESTATE  IN  TRUSTS.     See  Trusts. 
LEGAL  REPRESENTATIVES  used  of  lineal  descendants,  533 

implies  representation  in  case  of  decease,  552 
LEGATEE.      Definition,    2 

imder  prior  will  may  contest,  325 

included  in  "heirs,"  516 

includes   corporation,   535 

including  executor,  535 

can  not  collect  debts  due  estate  of  decedent,  801 

declarations   of.     See  Declarations. 
LEGISLATION.     Gift  contingent  on  future,  violates  rule  against  perpetu- 
ities, 626 

gift  to  cause  change  in,  valid,   653 
LEGISLATIVE  CONTROL  over  testamentary  power,  21-26 

before   testator's    death,    21 

after   testator's   death,   23,    312 

See  Testamentary  Power. 
LEGITIMACY.     Mistake  as  to,  120 

LEGITIMATION.      Effect  of.   on   term   "children,"   522,   525 
LETTERS  OF  TESTATOR  admissible  in  undue  influence,  423 
LEX  DOMICILI  controls  gifts  of  personalty,  31 
LEX  LOCI  controls  gifts  of  realty,  28-30 
LIBRARIES  are  charities,  646 

LICENSE  of  court  when  necessary  to  power  of  sale,  091 
LIEN.     Contingent  interest  not  subject  to,  664 

of  purchase  money  to  be  paid  by  devisee,  678 

of  judgment  against  life  tenant  divested  by  sale  under  power'  696 

of  charged  legacy,  enforcement  of,  760 

payable  out  of  personalty  if  debt  of  testator,  765,  766 

on  realty  paid  out  of   personalty,   791 
LIFE  ESTATE   can  not  be  devised  by  life  tenant,   140 

cut  down  from  fee,  474 

created  by  gift  of  income  for  life,  491 

at  common  law,  created  by  indefinite  devise,  560,  570 

at  modern  statutes,   562-574 

not  created   unless   intent   clear,   562 
not  presumed  to  be  intended,  562 

when  fee-tail  at  common  law  is  life  estate  in  first  taker  and  fee- 
simple  in  second  taker,  569 

created  by  express  words,  570 

words  expressly  creating,  570 

created  by  gift  "during  life,"  570 

created  by  gift  "for  the  term  of  his  life,"  570 

direction  to  support  another  does  not  cut  life  estate  down  to  estate 
'pur  auter  vie,  570 

pur  auter  vie,   570 

estate  for  widowhood,  571,  573 

created  by  gifts  over,  572,  574 

created  by  direction  to  support,  573 

created  by  gift  over  on  death  of  person  to  be  supported,  573 

misdescribed   as   fee-simple,    574 

not    created    by    recommendation    to    beneficiary    as    to    disposition    of 
property,   574 


INDEX.  1131 

(References  are  to   sections.) 

LIFE  ESTATE— Continued. 

not  enlarged  fee  by  limited  power  of  sale    5/ fa 

whether  addition  of  general  power  of  sale  to    creates  fee,  5/6 

enlarged   to   fee  by   general   power   of   disposition,   5^7 

creation  of,  leaves  remainder,  579 

created  by  trust,  618  ...      ...a 

gift  over  on  determination,  not  perpetuity,  b4U 

gift  of,  compared  with  restraint  on  alienation,  684 

when  determined  by  sale  under  power  of,  696 

premature   ending  of,   as   acceleration  of   payment   of  legacy,   802 

for  gifts  of  personalty.     -S'ce  Life  Interest. 
LIFE  IN  BEING.     Limit  upon  postponement  of  vesting  beyond,  628 

number  of,  unlimited,   628 

gift  vesting  at  end  of,  not  perpetuity,  37,  640 
LIFE  INSURANCE  is  not  appointed  by  general  clause  in  will,  500 

passes  under  general  gift,  if  devisable.  500 

does  not  pass  by  gift  of  community  property,  580 

does  not  pass  when  not  devisable,   500_ 

election  between,  and  gift  under  will,  714 
LIFE  INSURANCE  POLICY.     Evidence  in  gift  of,  819 
LIFE  INTEREST    (in  personalty).     How  created,   595 

when  held   to   pass   absolute   interest,   595 

in  personalty  is  possible,  596 

can  not  be  created  in  consumables,  596 

in  personalty,  how  created,  597 

;«  ,^ovcr.Ticiltv    pvoated  bv  aift  over,  597 

"roSr  S^emaindennan,  whether  bond  required  from  life  tenant. 

598 
LIFE  TENANT.     Restriction  on  powers.  576 

power  of,  to  bind  remainderman,  586 

of  personalty  may  be  prevented  from  waste    596 

of  personaltv,  whether  required  to  give  bond    598 

entitled  to  inaintenance  can  not  have  corpus,  605 

apportionment  of  income  on  death  of,  606 

gift  over  on  death  not  perpetuity,   631 

death  of;  before  testator  does  not  .affect  rema_inder,   662 

creditors   of,   have  no   lien   on   remainder,    69* 
LIMITATION  over  on  attempted  sale,  when  held  valid,  684 
LIMITATION,  ESTATE  ON,  compared  in  effect  with  estate  on  condition, 

681  ,         ^.1 

LIMITATION,  WORDS  OF,  necessary  in  fee  at  common  law,  56  i 
what  are  words  of,  561 
"heirs,"  561 
children,   561 

lineage,    561  ^    .      j     •  ^ 

LIMITATIONS.     When  statute  of,  begins  to  run  on  contract  to  devise, 

83 

on  time  allowed  for  offering  will  for  probate,  316 

period  of,  for  contesting  will,  321 
LINEAGE  word   of   limitation,   561 
LINEN,  household,  included  in  furniture,  492 
LITIGATION       Condition   in   restraint  of,   683 

what  is,  in  construing  condition  ^against,  683 

taking  part   in,   when   election,   722 
LIVE  STOCK.    Whether  passing  under  gift  of  "stock,"  497 
LIVERY  OF  SEIZIN,  theory  of,  destroyed  will  at  common  law,  10 


1132  INDEX. 

(References  are  to  sections.) 

"LIVING."     Gift  to  those.     Bee  Survivor. 

LIVING  CHILDREN.     /See  Children,  Class. 

"LOAN"   does  not  cut  freehold   down^   570 

LOCAL  LAW.     See  Law  Go\'erxing  Will. 

LOCATION.     Property   described   by,   494 

LOCO  PARENTIS    (IN).     Status  of,  important  in  ademption,  783 

LOSS  of  sight  and  hearing,   117 

8ee  Blixd,  Deaf,  Dumb,  Testamentary  Capacity. 

of  later  will,  efl'ect   on   earlier,   270 

of  codicil  does  not  invalidate  will,  314 
LOST  AND  SPOLIATED  WILLS.     Burden  of  proof,  434 
LOST  WILL.      Probate   of,   347-354 
/See  Probate. 

presumption  as  to.     /S'ec  Presumptions. 
"LOT."     How  used,  484 

number  of  controlled  by  description  as  of  lot  of  residence,  484 

evidence  in  devise  of,  819 
LOUISIANA  LAW.     Nuncupative  will  at,  241,  242 

See  Nuncupative  Will. 
LUCID  INTERVAL,   109 

LUNACY  effect  on  testamentary  capacity,  103,  108 
LUNATIC.      When    can    not    make    will,    103-108 

M 

MAILING   ^VTitten   election   to   probate    judge   not   filing   unless   received, 

730 
MAINTENANCE.     Gift  for,  not  advancement,  788 
jMAJORITY.     Postponement  of  vesting  till,  663 
MAN.     Marriage  of,   did   not   revoke  will,   281 

nor  birth  of  child  to,  282 

but  both  marriage  and  birth  of  child  to,  did  revoke,  283 

effect  of  modern  statutes,  281,  283 
MANAGE]MENT.     Direction  for,  not  trust,   46 
MANAGER.      Gift   to   business   manager   not   caused   by   undue   influence, 

416 
MANDATORY  P0\^T:R  creates  equitable  interest,  694 

of  sale  effects  conversion,   700,  701 
MANDATORY  WORDS.     Cut  fee  ^o\\n  to  life  estate,  574 

MANIA,103-109 

See   Testamentary   Capacity. 
MANSION.     Rights  of  wife  in.     See  Homestead. 
MAP.     Annexed  to  will,  not  incorporation,  but  does  not  vitiate  will,   186 

MARINER.     Will  of,  233 
See  Sailor. 
MARK.     Signature  of  testator  by,  173 

name  of  testator  need  not  be  written  by,  173 

effect  of  adding  name  of  testator  to,   179 

signature  of  witness  by,  219 
MARRIAGE  is  part  performance  of  contract  to  devise,  75 

whether  effecting  revocation.   281.   28.3,   284 

as   revocation.    454 

conditions    in    restraint    of.    681 

of  executrix  terminates  power  of  sale,  when.  692 


INDEX.  1133 

(References  are  to  sections.) 
MARRIAGE  SETTLEMENT.    Necessity  of  election  between,  and  provision 

in  will,  717 
MARITAL  RIGHTS  at  common  law.,  89 
MARRIED  WOMAN.     Testamentary  capacity  of,  89,  93 
See  Testamentary  Capacity. 
separate   estate  of,   (J24: 
when  can  not  act  as  executrix,  692 
MARRIED  WOMEN'S  ACTS   aflfecting  testamentary  capacity,   93 
MARSHALING.     Order  of,  in  absence  of  direction,  7G2,  7(55 
charge  of  debts  on  realty,  702,  7U4 
exoneration  of  personalty,  703 
See  Debts. 
MASSES.     Gift  for,  invalid  in  England,  650 
valid    in    United    States,    650 
unless  because  no  beneficiary,  650 
MATHEWS  V.  WARNER,   instance  of  fraud,  232,   244 
MEANING  OF  WORDS.     See  Words,  Definitions. 
MEDICAL  ATTENDANT.     Gift  to,  418 
MEDICINE.     Gift  to  promote  study  of,  is  charity,  645 
MEDIUM.     Gift  to.     See  Spiritualistic  Adviser. 

gift  by  advice  of.     See  Undue  Influence. 
MEMBER  of  religious  society,  competency  of  as  attesting  witness,  194 
MEMORANDUM.     Incorporation   in  will,   163     165 

of  will,  admissibility  to  show  contents  of  lost  will,  440 
MEMORY.     Degree  of  requisite  to  testamentary  capacity,  98 
of  testator  admissible  on  question  of  capacity,  397 
effect  of  slight  failure,  102 
MEMENTO.     Gift  of,  not  provision,  293 

gift  of,  does  not  make  recipient  a  legatee,  535 
MENACES.     See  Threats.  ,       .   n  .oa 

MENTAL  CONDITION  of  testator  admissible  in  undue  influence,  4^» 
See   Undue    Influence,    Evidence. 
evidence   of   generally,    382-403 
MERGER  of  charge  of  legacy  with  realty  charged,  758 
METES  AND  BOUNDS  control  acreage,  485 
MICROSCOPE.     Use  of,  to  read  illegible  writing,  251 
MILITARY  SERVICE.     Gift  to  aid,  is  valid,  653 
MINISTER.      Gift  to,  419 
MINISTRY.     What  is  preparing  for  the,  537 
MINORITY.      Gift   over   on    death    during,    676 

accumulation    for,    638 
MINORS.     When  gifts  for  support  of  minors,  when  due.  803 
MISDESCRIPTION  of  beneficiary,  natural  person,  538 
corporation,   539  ^ 

of  amount  of  note,  not  fatal,   /97 

See   Mtsnomer. 
of  realty.     See  Mistake,  Lot. 
MISNOMER   of  beneficiary,  natural   person,   538,  819 

corporation,    539,    819  .,     ,-     , kqo 

where  two  corporations  have  identical  name,  oS3 
MISREPRESENTATION    as    ground    for    revocation    of    written    election, 
731 


1134  INDEX. 

(References  are  to  sections.) 

MISSING  WILL.     Presumption  in.     See  Peesumption. 
MISSIONARY  WORK.     Gift  for,  is  charity,  649 
MISTAKE   as   to  nature  of   instrument,   47 

of  fact  not  insane  delusion,   105,   106 

classes,    118 

effect  of  mistake  in  execution,  119 

effect  of  mistake  in  inducement,   120 

statutory  rule,  121 

if  fact,  prevents  revocation  by  act  on  will,  258 

or  by  later  will  if  mistake  appears  on  face  of  will,  277 

of  law  prevents  revocation  by  act  on  will,  259 

or  by  later  will  if  mistake  appears  in  will,  277 

in  name  of  party   in   giving  notice,   319 

in  transcribing  will  in  probate,  corrected  in  contest,  323 

in   language   may   be   corrected  from  context,   473 

in  lot  number,  484,  487 

in   description   of   realty,   487 

not  fatal  if  sufficient  description  left  after  rejecting  error,  487 

minority    rule,    487 

in  name  of  corporation  in  which  stock  is  given,  497 

in  number  of  shares  given,  497 

in  description  of  realty,  819 
MISTAKEN  RECITALS.     See  Mistake,  Revocation. 
MISTRESS.     Gift  to,  where  void,  24 

will  in  favor  of,  to  what  extent  undue  influence  is  presumed,  411 
MISUSE   of   technical   words   not   fatal,   2 

of  words  "will,"  "deed,"  etc.,  44 
MIXED  FUND.     Gift  of,  may  be  separated  if  void  as  to  realty,  25 

creates  charge,  755 
MONEY  not  passed  by  gift  of  furniture,  492 

includes  deposit  in  bank  subject  to  check,  496 

not  deposit,  not  subject  to  check,  496 

does  not  include  realty  or  chattels  unless  by  context,  496 

does  not   include   securities  unless  by   context,   496 

whether   receipt  of,   is  election,   724 

whether  gift  of,  specific,  general  or  demon-strative,  767,  768,  769,  770 

evidence  of  amount  of,  819 
MODIFICATION  OF  WILL.     Courts  will  not  make  under  guise  of  con 

struction,  461,  466 
MONOMANIA.     Defined,    108 

See  Testamentary  Capacity. 
MONUMENT.     Gift  for,  over  grave,   is  valid,  651 
MORPHINE.     L^se  of,  effect  on  testamentary  capacity,  112 
MORTGAGE  on  realty  devised,  whether  revocation,  278,  279 

does  not  pass  by  general   devise  of  realty,  483 

passes  by  devise  of   specific   realty,   483 

power  of,  not  included  in  power  of  sale,  690 

payable  out  of  personalty  if  debt  of  testator,  765,  766 
MORTGAGE  DEBT  of  testator  payable  out  of  personalty,  765 

See  Mortgage. 
MORTMAIN.     Statutes  of,  25 
MOTIVE.     Words  showing  motive  distinguished  from  condition,  64 

whether  words  showing,  create  trust,  613 

distinguished  from  condition,   673 

effect  of  assigning  799 

See  Undue   Inflttence,   Evidence. 


INDEX.  1135 

(References  are  to  sections.) 

MOULDING  language  of  will,  473,  676 
MOVABLES.     Law  controlling  gifts  of,  31 
MUNICIPAL  CaRPORATION  may  be  devisee,  154 

may  be  trustee,  154 

inhabitant  of,  competent  witness  to  will  devising  to  corporation,  194 

charitable  gift  to,  644 
MURDER.     Whether  legatee  can  take  if  he  murders  testator,  687 
MUSEUM.      Gift   for,    whether    charity,    645 
MUTE.     Will  of.     See  Deaf,  Dumb,  Testamentary  Capacity. 
MUTILATION.     Revocation   by,  250 
MUTUAL  WILLS.     What  wills  are  mutual,  66 

validity  of  mutual  wills,  67 

whether  admissible  to  probate,  68 

revocability,   69 
MYSTIC  TESTAMENTS.     Definition,  243 

formalities,   243 


N 

NAME.     Misspelling  of  name  of  testator,   172 
what  is  good  signature,  172 

whether   name  of  person  signing  will   for  testator  must  appear,   1(8 
of   testator   added   to   mark   effect  of,   179 
where  wrong  name,  179 

prevails  over  description  of  beneficiary,  538 
condition  as  to  change,  688 
what  is  change  of,   688 
NAMING  members  of  class,  effect  of,  543 
NATIONAL  DEBT.     Validity  of  gift  to  reduce,  154 
NATURALIZATION.     Effect  of,  on  capacity  of  a  lien  to  take  realty  by 

will,  150 
NATURAL-BORN  CHILDREN.     See  Illegitimates. 
NATURE  OF  WILL.     Important  in  undue  influence,  426 
NAVAL   SERVICE.      Will   of   one   in,   233 

NEAREST  BLOOD  RELATIVES  indicated  by  "next  of  kin,"  521 
NEAREST  RELATIONS.     Who  are.  521 

See    Relations,    Relatives. 
NECESSARY  IMPLICATION.     See  Implication. 
NEEDY   RELATIVES.     Gift   to,   whether   charity,   647 
NEGATIVE  WORDS  of  disinheritance  not  will,  46 
do   not   disinherit,    467 
minority  rule  as  to,  467 
NEGROES.     Gifts  to  protect,  held  charity,   653 
NEPHEW.     Prima  facie  excludes  grandnephew,   531 
unless  by  context,  531 

does  not  include  nephew  by  marriage,   531 
used  in  describing  class.  541 
NEW  YORK  RULE  as  to  presumption  of  alteration.   432 
NEXT  OF  KIN.     When  "heir"  is  equivalent  to,  515 
definition,  521 
gift  to,  when  class  fixed,  547 

NICKNAME  may  be  shown   to  identify  beneficiary.   538 


1136  INDEX. 

(References  are  to  sections.) 

NIECE  excludes  grandniece,  531 

unless  by  context,  531 
NONAGE,  87 

(S'ee  Testamentary  Capacity. 
NOX-CHEISTIAN  ORGANIZATION.     Gift  to,  if  religious,  is  charity,  649 
NON-EXPERT  EVIDENCE,   490 

/S'ee  Opinion,  Evidence. 
NON-RESIDENT  ALIENS.     Discriminations  against,  151 
NON-REVOCATION    OF    WILL    may    rebut    presumption    of    undue    in- 
fluence, 414,  428 
NON-TESTAJMENTARY   WRITINGS.     What   are,   45,   48 
NOSCITUR  A  SOCIIS.     See  Context. 
NOT  PREVIOUSLY  disposed  of,  503 

NOTARY  duty  of,  in  nuncupative  will  in  Louisiana,  241,  242 
NOTE.     When  promissory  note  held  testamentary,  54,  55 

gift  of,  498 

payment  or   surrender  of,  causes  ademption,   780 

renewal  of,  no  ademption,  781 
NOTICE  necessary  for  probate,   319 

effect  of  omitting,  in  probate  or  contest,  337,  339 

judgment  in   contest  conclusive  as   to,    341 

of  application  to  admit  lost  will  to  probate,  351 

of  admission  of  foreign  will  to  probate,  357 

in  construction  suit,  811 

"NOW."     When  use  of  word  makes  will  speak  from  death  of  testator,  546 

NUMBER.     Effect  of,  to  extend  "relatives"  to  illegitimates,  529 

NUMBER  OF  WITNESSES  necessary  to  will,  190 

NUNCUPATIVE  WILL. 
I — In  general — 

not  affected  by   statute  on  written  wills,   19G 

common  law"  use  of  term  distinguished  from  Roman  law,  232 

history  of,  at  common  law,  232 

could   not   pass   realty,   232,   240 

passed  personalty  at  ecclesiastical  law,  232 

effect  of  statute  of  frauds.  232 
II — Who  can  make  nuncupative  will.  233-235 

testators  of   favored   classes.   233 

testators  leaving  small  estates,  233 

testators  in  extremis,  234 

what  is  last  illness,  234 

where  nuncupative  will  can  be  made,  235 
III — Distinctive   inherent   elements — 

animus  testandi  must  be  present,  236 

animus  nuncupandi  must  be  present,  236 
TV — Extrinsic   formalities — 

rogatio  testium  necessary,  237 

form  of,  237 

number   of   witnesses,   238 

competency   of   witnesses,   238 

reduction   to  writing.   239 
V — What  can  pass  by  nuncupative  will — 

realty  can  not  pass.  232.  240 

personalty  can  pass.  240 

debts   may   be   charged   on   realty   by,    240 

can  not  revoke  written  will,  264 


INDEX.  1137 

(References  are  to  sections.) 

NUNCUPATIVE  WILI^Continued. 
VI — Evidence — 

burden  of  proof  in,  447 
must   establish   rogatio    testium,    447 
NUNCUPATIVE  WILL  AT  LOUISIANA  LAW,  classes,  241 
definition,    241 

formalities    for    testament    by    public    act,    241 
for  testament  by  by  private  act,  242 
NURSE,  gift  to.     See  Undue  Influence,  PBESUMrxioN. 


O 

OBLITERATION,   when    held     cancellation,    251 

revocation  by,  251 
OBSERVATORY   is   educational    charity,    64G 
"OBSOLETE,"  writing  word,  is  not  cancellation,   249 
OCCUPATION,    description    of    realty    by,    487 

condition   as   to   occupation   of   realty   devised,   G84 
"OFFSPRING,"   definition,   526 

synonymous   with   issue,   52G 
OIL,  whether  income  or  principal,  602 
OIL  LEASE,   588 
"OLD    HOMESTEAD,"    488 
OLD    PERSONS,    wills    of,    102 

See  Testamentary  Capacity. 

OMISSION— 

I— Of  children— 

of  child  by  mistake  did  not  invalidate  will  at  common  law,  287 
effect   of   modern^  statutes.   288-296 

where  parent'  is  childless  when  will  is  made,  287 

where  parent  is  not  childless  when  will  is  made,  288 

of  child  by  mistake,  288 
construction   of   statute,   289,   293 

"having  no  child,"  289 

"subsequent    birth"    of    child,    290 
omission  of  child  from  will  where  no  provision  given,  291-296 
how  intentional  omission  is  shown,  292,  293 
provision   for   child,   what   is,   293 
omitted    children    need    not    contest,    295 
efl'eet  on   remaining   provisions   of   will,   296 
II     Miscellaneous 

of  parties  to  contest,   324 

of  reference  to  debt,   is  not  release,   787 

ON  DEATH,   gift  over,    676 

ONEROUS  GIFT,  acceptance  of,  creates  personal   liability,   751,   754,   761 

ONUS  PROBANDI.     See  Burden  of  Proof. 

OPINION  of  competent  witness  admissible  on  handwriting,   378 

but  not  if  not  based  on  facts,   379 

of  beneficiary  as  to  what  sort  of  will  testator  wished  inadmissible,  424 
OPINION  EVIDENCE   as  to  handwriting,   378 

as    to    sanity,    388-393 

what  is  mere  opinion,   392 

what   is   not  mere   opinion,    391 

can  not  extend  to  questions   of  domestic  law,   392 


1138  INDEX. 

(References  are  to  sections.) 

OPINION  EVIDENCE— Continued. 

at   what   time   opinion   must   exist,    393 

evidence  must  refer  to  condition  of  testator  at  execution,  393 

of   undue   influence,    admissible,    430 

as  to  justice  of  will  inadmissible,  430 

as  to  appearance  of  others  than  testator,  inadmissible,  430 
OPPORTUNITY    to    exert    undue    influence    not    conclusive    that    it    was 
exerted,    12/,    409-420 

OPTION.     When  valuation   of   realty  devised  gives   devisee  an   option   to 

purchase,    753 
"OR"  construed  "and,"  473 

"OR  EACH  OF  THEIR  HEIRS,"  meaning,  551 
ORAL  INSTRUCTIONS,  reference  to,   in  will,   168 
ORAL  WILLS,  validity,  157,  158,  232-239 
ORCHIDS  do  not  pass  under  gift  of  furniture,  495 
ORDERS    confused    with    wills,    56 
ORIGINAL  WILL,  when  production    dispensed  with,  368 

admissible    on    contest,    368 
ORPHANS,  gift  to  home  for,  is  charity.  648 
ORNAMENT,   what   is   article   of,    495 

whether   furniture,   492 
"OTHER  ARTICLES  OF  HOUSEHOLD  USE,"  495 
"OTHER  CHILDREN."  523 
"OTHER    CREDITS,"    498 

"OUR   CHILDREN"   includes   children   by   first   marriage,   523 
OUTLAWRY,   effect   on  testamentary  capacity,   86 
"OWN  AT  DEATH,"  475 
OWNERSHIP  of  property  affecting  construction,   504 

property  disposed  of,  prima  facie  testator's  .only,  605 

of   land,   gift   to   advance   reform   in,    653 


"PAR  OR  MARKET  VALUE,"  497 

PARALYSIS,    effect   of,   on   testamentary   capacity,  116 

See  Testamentary  Capacity. 
PARALYTIC,  will   of,    116 
PARAMOUR,  gift  to,   where  void,  24 

will  in  favor  of,  to  what  extent  undue  influence  is  presumed,  411 
PARCELS  of  realty,  description  of,  482.  484-487 

use  of  popular  name  to  indicate,  488 
PARDON    restores    competency    to   convict,    360 

PARENT.     Undue   influence   not   presumed   to   exist   between    parent   and 
child,  409 

use  of  term,   limits  "issue"  to  children,  520 

unless  by  context,  526 
PARK,  gift  for  public,  is  charity,  652 
PAROL,  will  can  not  be  party  in,  168,  816-820 

republication   by,   at   common    law,    304 

forbidden   at   modern   statute,    305 
PAROL  CONTRACT  not  revocation,  244 

does   not   effect   conversion,    704 


INDEX.  1139 

(References  are  to  sections.) 

PAROL  EVIDENCE,  of  intention  to  revoke  is  inadmissible,  2GG 

of  revivor  of  early  will  in  case  of  revocation  of  later  will,  273,  274 
454  . 

declarations    of    testator    in    undue    influence,    423 

as  to  date  of  alterations,  433 

as  to  contents  of  spoliated  will,  440 
See   ExTai>\src    Evidence. 
PAROL  PROMISE,  to  pay  money  in  consideration  of  devise,  72 
PAROL  TRUSTS.     See  Trusts. 
PARSONAGE,  gift  for,   is  charity,   649 
"PART."     Gift  of  "part"  of  realty,  when  certain,  485 
PART  of  will   avoided   for  undue   influence,    131 
PART   PERFORMANCE   of   contract   to  devise,   75 

PARTIAL    CANCELLATION,    when    eflfecting    revocation    of    entire    will, 
254 

PARTIAL  CONTINGENCY  preferred  to  one  afl^ecting  entire  will,  64 
PARTIAL   ELECTION   not  permitted,   710 
PARTIAL    INTESTACY    not    presumed,    466 

avaoided  in  construction,  475 
PARTIAL  INVALIDITY,  whether  invalidating  entire  will,  630 
PARTIAL  PROBATE,  when  permitted,   314 
PARTIAL   REVOCATION   by   canceling,   etc.,   validity   of,    254 
PARTICULAR    ESTATE,   creation   of,   did   not   revoke   will,    278 

See  Life  Estate. 
PARTICULAR   INTENT   yields   to  general,   462,   463,   616 

when   controlling   general,    690 
PARTICULAR  RESIDUARY   CLAUSE,  what   passes,   466 

PARTICULAR    AND    GENERAL    RESIDUARY    CLAUSE,    construction, 
467,    505 

when  particular  residuary  clause  preferred  in  construction,  467 
PARTIES  to  action  on  contract  to  devise,  82 

in  contest.   325.   326,   327 

to  probate  of  lost  will,   350 

to  action  to  probate   foreign   will,   357 

to  contest,  when  incompetent  as  witness,   361 

bound    by    decree    in    construction,    806 

in   suits   for   construction,   808 
PARTITION  does  not  revoke    will,   278 
PARTNER,  will  in  favor  of.     See  Business  Relations. 
PARTNERSHIP,  eflect  of,  incorporation  on  specific  gift,  497 
PARTNERSHIP   DEBT   not   released   by   gift   of   individual    indebtedness, 

501 
PASSIVE    TRUSTS,  615 
See  Trusts. 
PASTING   paper   over   part  of   will,    254 
PATENT  AMBIGUITY,  823 

See  Ambiguities. 
PAUPERS,  gifts  for,  when  charities,   647 
PAYMENT   is    consideration,   for   contract   to   devise,    72 

by  devisee  for  realty  devised,  enforceable  by  lien  in  equity,  678 

if  legacy,  when  direction   for,  is  charge,  752 

of  debts,  direction  for,  rebuts  presumption  of  satisfaction,  797 

of  legacies,  ■  801 

See  Legacies. 


1140  INDEX. 

(References  are  to  sections.) 

PECUNIARY  LEGACIES.     Hee  Legacies. 
PENCIL,  will  written  with,  159 

cancellation    with,    249 
PER   CAPITA   AND    PER   STIRPES,   DISTRIBUTION— 
I — Per  capita  gifts — 

distinguished   from   gift   per   stirpes,   525 
where    equal    degree,    553 
required    by    gift    "equally,"    554 
required  by  gift  "between,"   554 
required   by  gift   "shall    share   alike,"   554 
extrinsic  evidence  inadmissible  to  change  to  per  stirpes,  820 
11— PER  STIRPES  GIFTS— 
gift   to   class,   549 

distinguished   from   per  capita  gift,   552 
words   implying  representation,   552 
gift  to  issue,  heirs  or  descendants,  requires,  553 
gift  to  "heirs,"   "children  and  heirs,"   556 
III     Ambiguous   gifts   requiring  especial   consideration — 
to  "heirs  'share  and  share  alike,'  "  557 
"equally  to  heirs,"  557 
gift  to  children  of  two  or  more,  558 
gift   "between"   heirs   of   two   or   more,   558 
"between"  relatives  of  two  or  more,  558 
gift  as  in  intestacy,  559 

"equal  parts"  among  those  entitled  under  statute  of  descents  and 
distributions,    559 
PER  STIRPES.     -See  Per  Capita  and  Per  Stirpes. 
PERCEPTION   essential   to  presence,   210 

PERISHABLE  PROPERTY.     Life  estate  in,  not  possible,  595 
PERFORMANCE  of  conditions.     Sec  Conditions. 
PERIOD.     What  must   intervene  between  execution  of  will  and  death  of 

testator,   in  case   of  gift  to  corporation,   25 
PERPETUITIES    (RULE   AGAINST),   intention  to  violate  rule  against, 
not   presumed,   465 
gifts  in  violation  of,  passes  under  residuary  clause,  507,  746 
rule  against,  when  violated  by  gift  to  wife,  511 
class  must  not  be  fixed  at  so  remote  a  time  as  to  violate  rule  against, 

546 
rule   against,    remainder   must   not   violate,   583 
trusts  in  violation  of  rule  against,  void,  621 
construction    avoiding,    preferred,    622,    658 
triple  meaning  of  perpetuity,   625 
perpetuity  in   technical   sense,   625 
original    rule,    definition,    6:^6 

applies  to  time  of  vesting,  626 

depends  on  facts  at  death  of  testator,  626 

power,  refers  to  date  of  creation  of,  626 

governmental    action,    gift    depending    on    contingent,    violates, 

626,  636 
history   of   rule,    627 

not   important    at   early    common    law,    627 
statement  of  rule,   628 

length  of  time  for  which  vesting  may  be  postponed,   628 
does  not  apply  to  vested  interests,  628,  631 
applies  to  contingent  interests,   620 
applies    to    equitable    interests,    628 
effect  of  gift  in  violation   of  rule,   629 
applies  to  gift  which  may  not  vest  within  time,  629 


INDEX.  1141 

(References  are  to  sections.) 

PERPETUITIES    (RULE  AGAINST)— Continued 

invalidity  of  alternative  provision  does  not  invalidate  will,  b30 
partial   invalidity  may   invalidate  entire  gift,   630 
successive  gifts,  030 
gifts  not  violating  rule,  631 
gift  over  on  failure  of   issue,  631 
gifts  violating  rule,  632 
gift    vesting    at    end    of    fixed    term,    632 
statutory   moditication,   633 

rule  against  restraint  on  alienation  extended  to  prevent  perpetu- 
ities, 635 
wl^at  classes  of  property  included,  635 
what  gifts  violate  rule,   635,  636 

rule  violated  bv  preventing  alienation  for  fixed  term,  63b. 
but   may   be    valid    for    part   of    term,    636 
what  gifts  do  not  violate  rule,  637 
gift  for  one  life,  637 
gift  for  two  lives,  637 
joint  gift,    637 

separate  trusts,  637  c        ■  ^     cm 

condition  as  to  birth  of  issue  in  violation  of,  void,  67/ 
devolution    of    gift    in    violation    of,    746 
gift  in  violation  of,  how  treated,   763 
accumulations    valid    unless    perpetuity,    638 
Thelluson's   Will,   638 
statutory    rule,    038 

for    charity,    642  .   « 

charity  subject  to  rule  against  perpetuities  as  to  vesting,   640 
not  subject  as   to   restraint  on   alienation,   641 
accumulations   for,   642 
PERSONAL   CHARGE,   what  constitutes   a,   754 
may  show  intent  to  pass  fee,  561 
to  "pass   life-estate,    573 
PERSONAL   LIABILITY    of    devisee,   how    enforced,    761 
PERSONAL  PRIVILEGES  not  descendible  or  assignable,  688 

election   is,   719 
PERSONAL  PROPERTY,  passes  by  "estate,"  475 
passes  bv   "property,"   476 
gift  of,  on  farm  includes  growing  crops,  494 
PERSONAL  REPRESENTATIVES.     Hee  Representatives. 
"PERSONAL  USE   AND   ORNAMENT"   does   not   pass   yacht,   495 
PERSONALTY    distinguished    from    realty,    33  ,,,,,, 

acquired   after   execution   of  will   may   be  bequeathed,    141 
"furniture,"   492 
household   goods,   493 
gift  of,  by  location,  494 
described   by   use,   495 
"money,"   496 
stocksand  bonds,  497 
gift  of  notes  and  debts,  498 
meaning  of   "heir"   in   gift  of,   515     944 
crift   oi%rima  facie,   passes   absolute  interest,   59.j 
life  interest  on.  how  created,  clear  language  necessary,  597 
life  interest,  created  by  gift  over,  597 
converted  into  realty,  700 

legacy   primarily   payable   out  of,   747  ^ 

deficiency  of,  when  creating  a  charge,  750,  755,   ( 5» 
exoneration   of,   7.56 


1142  INDEX. 

(References  ai-e   to  sections.) 

FEllSGNALTY— Continued. 

when  charged  with  legacy,  though  si^ecifically  bequeathed,  759 
charged   with   debts,   759 
exonerated  from  debts,  7(53 

first  liable  for  testator's  debts,  even  if  liens  on  realty,  705,   7(j6 
for  deficiency  in,  ISee  Abatement. 
PERSUASION,    when    not   undue    influence,    127 
PETITION   for  probate  of   will,   318 
in  contest,  328 

for   admission   of   lost   will    to   probate,    352 
to   admit   foreign   will   to   probate,    357 
PHILANTHROPIC   held  not  charitable,   654 

PHOTOGRAPH  of  testator  not  admissible  on  issue  of  capacity,  403 
PHYSICAL    CONDITION    OF    TESTATOR    admissible    in    undue    influ- 
ence, 428 
PHYSICIAN  can  not  testify  to  confidential  communications,   364 
unless  he  is  called  as  subscribing  witness,  365 
gift  to.     See  Undue  Influence,  Presumption. 
PICTURES,  whether  furniture  or  not,  492 
PIECES.     Will  written  on  several  pieces,  valid,  101,  378 
PIOUS  PURPOSES,  gifts  for,   whether  valid  charities,   649,   650 
PLACE    of    making    nuncupative   will,    235 
PLAT,  reference  to,  controls,  484 
PLATE,  whether  furniture,  492 
PLAYGROUND,   gift   for   public,    charity,     652 
PLEADINGS   in   construction   suit,   810 

in    contest,    328 
PLURAL  number  as  affecting  construction  to  include  illegitimates,  529 
POLICY  OF  INSURANCE.     See  Insurance. 
POLYTECHNIC  SCHOOL,  gift  to,  is  charity,  645 
POOR,   aid  of,   is  charity,  647 

POOR  RELATIONS,  whether  gift  to,  is  charity,  647 
POPULAR   NAjME   of   realty,    488 
POPULAR  MEANING  of  words, 

See  Words,  Definitions. 
"PORTION  AFTER  MY   FATHER'S   DEATH,"   479 
PORTRAITS,   whether   furniture,   492 
"POSSESS"    in   gift   of   property,   whether   passing   after-acquired    realty, 

489 
POSSESSION,  will   can   not  pass   right  of   immedjate,   49 
whether    surrender    of,    is    part    performance,    75 
postponement  of,  does  not  defer  vesting,  659 
POSSIBILITY   (OF  ISSUE),  when  ceasing,  515,  629,  677,  802 

gift  over  after.     See  Issue. 
POSSIBILITY    (OF  REVERTER),  whether  devisable,   146 
POSSIBILITY^,  whether  devisable,  146 

POSSIBILITY  ON  POSSIBILITY.     Early  form  of  rule  against  perpetu- 
ities,   627 
POSTHUMOUS.     See  Child,  Children. 

POSTPONEMENT  of  distribution  sets  time  for  fixing  class,  548 
except  where  for  convenience  of  settling  estate,  548 
of  possession  does  not  defer  vesting,   659 


INDEX.  ^^"^^ 

(References  are  to  sections.) 

POSTERIOR  CLAUSE,  when  prevailing,  503 
POVERTY  of  legatee,  whether  admissible,  386,  427 

gift  to  relieve,  047 
POWERS,  law  controlling  as  to,  39 

capacity  of  married  woman  to  execute,  Jl 

whether  avoided  by  invalidity  of  dispositive  provisions,  296 

devolution  of   property   pending  exercise  of,  400 

implied  from  recital,  468 

does  not  reduce  tee  to  life  estate,  5/5  .  ,    ^7  = 

when  important  as  showing  intention  to  create  fee,  575 

gift'to^iemaiifdermen   where    fraudulent   conveyance   by    life   tenant. 

under   power   of   sale,   5/6  f„„    ctr 

limited,  held  not  to  enlarge  life  estate  to  fee,  570 
must  be  exercised  in  good  faith,   5' 6 
whether   general   power   enlarges   life-estate   to   fee,   5(0 
whether    passing    fee    or    life    estate,    5/0 
Tdifferent  capacity,  does  not  enlarge  life-estat_e  to  fee,  576 
general,  held  to  enlarge  life  estate  to  fee,   5// 
of  disposition  of  personalty —  . 

general,  when  creating  absolute  interest  in  personalty,  595 
general,   creates   absolute  interest,   596 
limited,  does  not,   596  .   ,  ,  ^  .      ^q^ 

for  support,  does  not  give  right  to  waste,  596 
obviates  bond,  598  ..^     r  •       ^„    koq 

power,   626  ...    am 

does  not  make  devise  contingent,  600 
does  not  create  contingent  legacy,  609 
definition,  689  _ 

how  a  power  of  sale  is  created    689    695      • 
how  a  power  to  devise  is  created,  09U 

sale,   691 
conditional  power  of  sale,  691 
power  of  sale  for  illegal  purpose,  691 
power  of  sale  does  not  include  power  to  mortgage    691 
method     of     exercising     power     indicated     by    testator    must    be 

power'of  III  does  not  include  power  to  exchange,  691 

by  whom  power  is  exercisable,  692 

by  survivors,   692 

by  successors,  692 

unless   discretionary  power,   09Z 

consent   of    specified   persons,   when   necessary,   693 

failure    to    exercise   po^yer,    694 

where    discretionary,     694 

where  mandatory,  694 

conferred  upon  life  tenant,  695 

how  exercised  by  life  tenant,  6d6 

by  creditors   of   donee   of  power,   0J7 

reference  to  power,   whether   necessary.   698 

if    mandatory,    causes    conversion,    iW 

even   if   restricted.   701 

not,    if    discretionary,    702 

when   charging   legacy,    750 

lecracies  given  under  power,  abatement  ot,   /(» 

extrSnsic^vidence   to'   show    intention    to    execute.    820 


1144  INDEX. 

(References  are  to  sections.) 

POWER  OF  APPOINTMENT,  failure  to  exercise,   does  not  defeat  equi- 
table remainder,   579 
POWER   OF   ATTORNEY,   when    testamentary,    57 
POWER  TO  DEVISE,  passes  fee,  when,   576 
POWER  OF  DISPOSAL.     See  Power. 
POWER  OF  SALK     See  Power. 

PRAYERS    (for  the  dead),  gift  for,  invalid  in  England  as  superstitious, 
650 

valid   in   United    States,    650 

except  because  of  absence  of  living  beneficiary,  650 
PREACHING,   gift   for,    is    charity,    449 
PRECATORY  WORDS,  strictly,  not  will,  46 

when  discretionary,  not  testamentary,  59 

when  mandatory,  testamentary,  59 
PRECATORY  TRUST,  discretionary  advice  aoes'not  create,  611 

nor  recommendation  to  make  certain  disposition  by  will,  611 

imperative  words   create,   even   if  mild   in   form,   612 

may  be  created  by  "wish,"  "desire"  or  "recommend,"  612 

motive,  effect  of  words  showing,  613 
PRECEDENT  CONDITIONS,  672 

See  Conditions. 
PRECEDENTS   ia   construction.     See  Authorities. 

PREFERENCE  of  testator  for  certain  children  does  not  invalidate  will, 
23 

is  not  undue   influence,    127,    132 
PREJUDICE   causing  will   is   not   undue   influence,    132 
PREMATURE  TERMINATION  of  particular  estate,  effect  on  payment  of 

legacy,   802 
"PREMISES,"  what  passes  by  gift  of,  488 
PREMIUM  on  bonds,   how  made   up,   602 
"PREPARING  FOR  THE  MINISTRY,"  537 

PRESENCE.     Will   must  be  signed   in   presence  of   testator,   175 
See  Extrinsic  Elements. 

what  constitutes,   209-216 

testator  must  sign  in  presence  of  witness,  222 

of   beneficiaries   at   execution   does   not   create   presumption   of   undue 
influence,  415 
PRESENT  TENSE,  words  of,  as  showing  time  of  fixing  class,  546 

as   passing   after-acquired   realty,   489 
PRESENT  DEBTS,  release  of,  does  not  release  subsequent  debts,  501 
PRESUMPTIONS,  as  to  foreign  law,  in  absence  of  evidence,  41 

as    to    continuance    of    delirium,     113 

of  construction,  against  revocation   by  codicil,   269 

of  revivor  of  earlier  will  by  revocation  of  later,  271,  273 

of  sanity,   383 

of  continuance  of  mental   condition,   384 

in  undue  influence,  408 

will   in  custody  of  testator,  alterations  presumed  to  have  been  made 

after  execution,  432 

where  will  not  in  custody  of  testator,  4.32 

as   to   alteration,    New   York    Rule.    432 

of   date   of   alteration   may   be   rebutted   by   certificate   in   attestation 
clause,   433 

or  by  extrinsic  evidence.  433 

of  revocation   of  missing  will,   442 


INDEX.  1145 

(References  are  to  sections.) 

PRESUMPTIONS— Continued. 

arising   from   destiuction,   may   be   rebutted   by   declaration   of   testa- 
tor,  443 

of  revocation,  if  will  missing,  449 

from  torn  will,  449 

iSec  Undue  Influence. 
PRETERMITTED  CHILDREN,  287-296 
PREVENTION   (of  lapse).    See  Lapse. 
PRICE.     Devise  at  fixed  price  makes  case  for  election,  717 

gift  at  fixed  price,  v^hen  charge,   753 
PRIEST,  gift  to.     See  Undue  Influence,  Peesumption. 
PRIMA  FACIE  CASE  necessary  at  Probate,  320 
PRIMARY  SENSE  of  words  used  if  not  modified  by  context,  471 
PRIMOGENITURE     increases     practical      importance     of      testamentary 

power,  5 
PRINTED  FORM.     See  Printing. 
PRINTING,  will  valid  if  in,  159 

holographic  will   can   not  be  partially   in,   230 

revocation  clause  in  printed  form,  when  ignored,  207 
PRIORITY    (in  abatement),  776 

See  Legacies    (for  value). 
PRISONER,    capacity    to    make    will,    86 

capacity   to   take   gift,    155 
PRIVATE  ACT.     Nuncupative  will  by,  at  Louisiana  law,  242 
PRIVATE   CEMETERIES,   651 

See  Cemeteries. 
PRIVATE  CHARITY,  gift  to,  can  not  be  perpetuity.  647,  651,  653 
PRIVATE   CORPORATIONS  could   not  take   by   devise   under   Wills   Act. 
152 

may   take   at   modern   law,    152 

special  statutory  restrictions,  153 

gift    to,    for    charitable    purposes,    645 
PRIVILEGE.     Release  of  communications  to  attorney  or  physician  from 
bar    of,    365 

bars   confidential   communications    if   not    waived,    304 
PRIZE  for  promotion  of  study  is  charity,  045 
PRO  RATA,  distribution  of  residuum.  509 
PROBATE  OF  DOMESTIC  WILLS,  admissibility  of  joint  will  to,  08 

whether    statutes    of    procedure    afl'ect    competency    of    witnesses    in 
Probate  Courts,  191 

whether    statute   applying   to    evidence   generally    applies    to    Probate 
courts,    197 

of  revoking  instrument  other  than  will  not  necessary,  205 

evidence  at,  of  spoliated  will,  270 

history  of  law.  312 

wills  not  subject  to  probate,  312 

except  by  statute,  312 

testaments   always   subject   to   probate,    312 

classes    of    probate,     312 

whether   probate   is    conclusive   or   not,    312,  313 

definition  of  probate,   312 

nature  of  probate   in   common   form.   312 

nature  of  probate  in  solemn  form,   312 

modern   statutes   aflfecting   probate.    312 

necessity    of    probate    at    modern    law,    313 


1146  INDEX. 

(References  are  to  sections.) 

PROBATE  OF  DOMESTIC  WILLS— Continued. 

necessary  to  give  title  to  realty,   313,  805 

what   must   be   probated,   314 

probate    of    codicil    without    will,    314 

probate  of  will  without  codicil,  314 

probate  of  separate   wills,   314 

court  of  probate  powers,  315 

jurisdiction  of  equity  over  probate,   315 

efl'ect   of  delay   in   presenting  will   for   probate,   316 

who  may  propound  will  for  probate,  317 
beneficiary   may   propound,    317 
executor   may   propound,    317 
creditor  of  legatee  may  projiound,  317 

procedure  in  probate,   318-320 
petition,  318 
notice,    319 

Examination    of    witnesses,    320 
prima   facie    case   only,    necessary,    320 

transcript  of  evidence  introduced  at,  may  be  admitted  at  contest,  3G7 

of  will  afterwards   lost  establishes   execution,  439 
See  Contest. 
PROBATE  OF  FOREIGN  WILLS.     Definition  of  foreign  will,  355 

law  controlling.     Sec  Conflict  of  Law. 

nature  of  probate  of  foreign  will,  356 

court  having  jurdisdiction  to  admit  foreign  will  to  probate,  356 

parties,  357 

petition,    357 

notice,  357 

evidence,   357 

effect  of  order  admitting  to  probate,  357 

registry   of    foreign    will,    358 
PROBATE    OF    LOST    AND    SPOLIATED    WILLS.      Definition    of    lost 
will,    347 

of    spoliated    will,    347 

admissibility   of   lost   will    to   probate,    348 

what  court  may  admit   lost  will   to  probate,   349 

parties   to   probate  of   lost   will,   350 

notice,   351 

petition,    352 

jury,   353 

charge    of    court,    353 

contest,   354 
PROBATE   COURT  should   determine  allowance  of  attorney   fees   in   con- 
test,  345 

power    of,    to    construe,    812 
PROBATE  JUDGE,  competency  of,  as  subscribing  witness,  199 
PROCEDURE.     See  Probate  Contest. 
PROCEEDS,  gift  of,  when  creates  power  of  sale,  689 
PROCESS  OF  LAW^  what  is  taking  property  by,  685 
PROCREATION,  words  of.     See  Fee-tail. 

PRODUCTION    (of  original  will),  required  at  contest,  when,  368 
PROFESSION,  condition   requiring  study  for,  537 

PROFESSIONAL   ADVICE,   declarations   of   testator   while   asking,   inad- 
missible,    364 
unless  made  to  subscribing  witness,  366 

PROHIBITION,  what  is  support  of  cause  of,   744 


INDEX.  1147 

(References  are   to  sections.) 

PROMISE  confused  with  will,  54,  55 

to  make  will,  not  testamentary,   58 

to  make  will,  is  good  consideration  for  reciprocal  promise,   72 
PROMISSORY   NOTE,   v/hen  testamentary,   54,    55 
PRONOUNS,  misuse  of,  does  not  defeat  gift  if  intention  clear,  473 
PROOF   of   spoliated  will,   270 

PROPERTY,  what,  subject  to  testamentary  power,   18,   19 
will    need    not   dispose   of,    45 

in  general  is  now  subject  to  disposition  by  will,  134 
restrictions  on  testamentary  power  over  property  at  common  law,  9- 
11,    18,    19 

ownership  of  property  disposed  of  by  will  must  be  in   testator, 

135-139 

in   general,    135 

insurance   policies,    136 

not   devisable   where   payable   to  others,    136 

dower,   interest   of   widow   can   not   be  devised   without   her   con- 
sent,   137 

curtesy,    137 

distributive   share   of   personalty,    137 

homestead    rights,    138 

community    property,     139 

life  interests,  140 

joint   interests,    140 
after-acquired  personalty  may  be  bequeathed,   141 
after-acquired    realty    not    devisable    under    Wills    Act,     142 

equitable    interest    devisable,    though    legal    title    afterward    ac- 
quired, 143 

devisable  by  modern  statute,   142 
Classes    of    property    disposed    of    by    will — 

realty,    in   general,    143 

where  testator   is  disseised,   144 

interest  in  futuro,  145 

possibilities — 

not    devisable,    146 

except  where  coupled  with  interest,  146 

rights   of   entry,    147 

equitable    interests,     148 

creditors  can  not  be  prejudicially  affected  by  devise,  149 
testator  presumed  to  devise  only  his  own,   465,   605 
what    words    pass    entire,    475 
passes  realty  and  personalty,  476 
passes   fee-simple,   476 
context  may  confine  to  personalty,  476 
described    by    reference    to    its    source,    480,    483 
excepted    from    general    bequest,    481 
passes   realty,   488 

testator,   prima  facie,  disposes  only  of  his  own,   504 
excepted    from   residuary   clause,    507 
subject   to   substitutional    gift   over    in    case   of   death   before   testator 

is   devisable    if    legatee    survives,    676 
when    acceptance  constitutes   legacy,    723 
of   testator,    extrinsic    evidence    of,    admissible,    817 
evidence  of,  to  show  intention  of  testator,  S17 

PROPERTY  RIGHTS,  questions  of  construction  raised  by,  456 

PROTECTION  of  remainderman,  803 
of  annuitant,  803 


1148  INDEX. 

(References  are  to  sections.) 

PROVISION  for  child  prevents  revocation,  283 

failure  to  make  provision  for  children,  291-296 

what  is,  293 
PROXY,  signature  of  will   by,   174 

PUBLIC  ACT.     Nuncupative  will  at  Louisiana  law,  241 
PUBLIC    ADMINISTRATOR    can    not    contest,    325 
PUBLIC  CORPORATION,  gift  to  city,  154 

gift  to  state,  154 

gift  to   United  States,   154 

charitable  gift  to,   as  trustee,   644 
PUBLIC  EuVIPLOYEES  not  included  under  "servants/'  534 
PUBLIC    LIBRARIES,    charities,    646 

what   is   a   public   library,    646 
PUBLIC  PARKS,  gift  for,  a  charity,  652 
PUBLIC  POLICY,  not  opposed  to  gifts  to  cause  change  in  law,  653 

opposed  to  restraints  on  alienation,  634,   637,  684 

and    perpetuities,    625,    633 

and   conditions   in   restraint   of   marriage,   681 

and  as   to   religious   belief,   when,   682 
PUBLIC  SCHOOLS,  gift  for,  is  charity,  645 

even   if   causing   reduction   in   taxation,   645 
PUBLICATION     (of    will),     225-228 

See   Extrinsic   Elements. 

at    Louisiana    law,    242 
PUBLICATION   of    religious   books   is   charity,    649 
PUNCTUATION  may  be  corrected,  471 

may  be  ignored,  471,  612 
PUR  AUTRE  VIE,  estate  for,  how  created,  570 
PURCHASE,   what  are   words   of,   561 

heirs,  as,  word  of,  561 

option  to  devisee  to  purchase  at  price  named,  when  charge,  753 

those   claiming   by    purchase   not   bound    by    decree   against    ancestor, 
812 
PURCHASE  PRICE  of  realty  sold  by  testator   does  not  pass  by  devise, 
482 

unless    by    context,    482 
PURCHASER    (FOR  VALUE).     See  Legacies    (for  Value.) 
"PURPORTED  WILL"  proper  in  description  of  will  at  probate,   333 
PURPOSE   of  gift,   effect  as  creating  spendthrift  trust,   685 


QUAKER,  condition  requiring  legatee  to  remain  a,  681,  682 
QUARREL,    disinheritance    caused    by,    is    not    product    of    undue    influ- 
ence,   132 
cause  of,  between  testator  and  beneficiaries,  whether  admissible,  427 
QUESTIONS,  ability  to  answer,  not  conclusive  as  to  capacity.   398 
QUIATIMET,  suit  in  nature  of,  to  enforce  contract  to  make  will,  79 
QUIET  TITLE,  equity  construes  will  in  suit  to,  806 


INDEX.  1149 

(References  are  to  sections.) 
R 

RATIFICATION  of  invalid  will  does  not  give  it  validity  unless  amount- 
ing to  republication,  303-311,  428 
"READ    LAW,"    meaning    of,    537 
READING   WILL  to  testator,  whether  necessary,  47,   380 

may  rebut  presumption  of   fraud,  414 
READING-ROOM,   free,   is   charity,   646 

REALTY,  by  what  law  devise  of,  governed,  28 
distinguished  from  personalty,  33 
contract  to  devise  realty  within  statute  of  frauds,  74 
after-acquired  realty,   142 

can   not  pass   by  nuncupative  will,  232,  Z4U 
title  to   depends  on   prjabate,   313 
passes   by   "effects,"   478 
passes  by  "surplus,"  479 
described  by  reference   to   plat,   484 
described   by    metes    and   bounds,    485 
misdescription    of,    487  ,         .qt 

misstatement  of  interest  of  testator,  48/ 
described  by   popular   name,  488 
gift  of,  at  valuation,  490 
does  not  pass  by  gift  of  deed    494 
converted    into    personalty,    700-705 
how    charged    with    legacies,    749 
how  charged  with  debts,  764 
whether   subject   to   ademption,   782 
right  of  devisee  to  possession  of,  805 

effect  of  incorrect  description  of,  ^19     ,      ,.  ^    ,        .   ,.  „     a9(\ 
extrinsic   evidence   inadmissible   to    contradict   description,   820 
See  After-acquirkd  Realty. 
"REAL   ESTATE"    does   not   pass   mortgage,    483 

what  is  "unimproved,"  486 
REASON.     Effect  of  assigning  reason  as  limiting  gift,  64,  613,  6/3, 
RECEIPT  of  legatee  for  share  is  not  revocation,  279 

of  monev,  whether  election,   724  _ 

RECEIVER,^  appointment    of,    as    violation    of    condition    against    execu- 

tion,   685 
RECIPROCAL  WILLS,  66 
RECITAL,  when  no   implied   gift  from,   468 
implied    gift    from    erroneous,    468 
of  motive,  whether  condition,  673  _ 

RECOGNITION  of  illegitimate  child,  whether  causing  revocation,  290 
RECOMMENDATION,    words    of.    whether    creating    trust,    611 
RECONVERSION  in  failure  of  original  purpose    707 
RECONVEYANCE  does  not  prevent  revocation  by  change  of  estate,  278 
RECORD,  filing  instrument  for,  does  not  show  it  is  not  will,  44 
RE-EXECUTION   effects   republication,    306  ,   ,    ,.„    ,.^ 

REFERENCE  in  will  to  document  to  be  incorporated.  162,  163 

to   power,    whether   necessary,    698  _ 

REFORM      Gift  to  promote  Cause  of  land  reform  is  valid,  653 
Formation     (OF    beneficiary).      Condition    precedent    to    pay. 

ment  of  legacy,  679 
REFORMATION    (OF  WILL)    not  allowed,   809,  816,  819 


1150  INDEX. 


(References  are  to  sections.) 


REFUSAL  to  admit  will  to  probate  is  not  conclusive,  343 
REFUSED    DEVISE    accelerates    remarnder,    737 

disappointed  legatee  compensated  out  of,  737 
REFUSED  LEGACY,  devolution  ol,  744 
REGIMENT,  gift  to  support  volunteer,  valid,  653 
REGISTRATION   of   domestic   will   not  necessary,   44 
REGISTRY  of  foreign  will,  358 
REJECTION  of  erroneous   description,   487 
RELATIONS,    whether   gift    to    poor,    is    charity,    647 

who  are,  under   statutes,  preventing  lapse,   743 

RELATIONSHIP  of  testator  and  beneficiaries  admissible   to  show   inten- 
tion,   817 
RELATIVES.     Evidence  of  insanity  of  relatives  of  testator,  whether  ad- 
missible, 395 

definition,    529 

modified  by  context,  529 
RELEASE,  effect  of,  on  competency  of  witness,   192 

of  interest  of  beneficiary,  eflect  of,   195,   196 

of  obligations,   what   obligations   released,   501 

of    what,    informal,    790 
RELIGION,  gift  for,  is  charity,  649 

condition  requiring  devisee  to  adhere  to  certain,  682 
RELIGIOUS  ADVISER,  gift  to.     »S'ee.  Undue  Influence,  Presumption. 
RELIGIOUS   AND   DENOMINATIONAL   TEACHING,   prohibition   of,   in 
school,   is   valid,   645 

RELIGIOUS   BOOKS,   gift   to  publish,   is   charity,    649 
RELIGIOUS   CORPORATION,   gift   to   is   valid,    152,    153,   649 

restrictions  on  gift,  25 
RELIGIOUS  EXERCISES,  provision  for,  at  conuty  orphans'  home  is  valid, 

648 
RELIGIOUS  SECTS.     Condition  as  to  joining  or  not  joining,  681,  682 
REMAINDER.     Devisable.  145 

even  if  contingent,   145 

created    by    implication,    468 

term  equivalent  to  residuum,  506 

passed  fee,  561 

gift  of,   reduces   preceding   interest,   574 

defined,   578 

how  created.  579 

when  taking  efl'ect,  579 

after   fee-simple,   void   for   repugnancy,    580 

after    life   estate    with    power    of   distribution,    whether    void    for    re- 
pugnancy, 581 

on   breach   of   condition,   582 

must  not  violate  rule  against  perpetuities,  583 

waiver  of,  584 

what  property  passes  in,   585 

where  passing  life  estate,  614 

vested,  opening  to  let  in  after-born,  661 

not  subject  to  claims  of  creditors  of  life  tenant,   697 

accelerated  by  refusal   of  life  estate.  737 
REMAINDERMAN.     Power  of  life  tenant  to  bind,  586 

of  personalty  may  prevent  waste,  596 

protection  of.  598 

whether  bond  required  of  life  tenant,  598 

entitled  to  protection  even  if  interest  contingent,  666 


INDEX.  1151 

(References  are  to  sections.) 

REMARRIAGE.     Validity  of,  conditions  against,  681 
REMEDIES  for  breach  of  contract  to  make 'a  will 
at  law,  78 
in  equity,  79 

of    remainderman    where   life    tenant    fraudulently    conveys    property 
under  power,  576 

of  remainderman  to  prevent  waste  of  personalty,  596 
REMOTE  declarations,  not  admissible  in  evidence,  400 
REMOTENESS.     Poweij    when  void  for,  626 

gift  over  on  failure  of  issue,  when  void  for,  633 
(S'ce  Perpetuities,  Vesting. 
REMOVAL   from   domicile,   effect  on  will,   32 
RENEWAL  of  note  or  lease  does  not  work  ademption,  781 
RENT— CHARGE.     See  Charge. 
RENTS,   how   ascertained,   491 

gift  of   for   life,   passes  life  estate,  491 

absolute  gift  passes  fee,  491 

gift  of,  may  pass  reversion,  491 

direction  for  collection  of  rents  is  not  trust,  614 
RENUNCIATION  OF  DEVISE,  584 

"REPAIRS  OR  IMPROVEMENTS,"  does  not  include  street  assessments, 
602 

REPETITION  of  legacy,  798 

See   Substitutional,  Legacy. 
REPRESENTATION.     Words  of,  preventing  lapse.     See  Lapse. 
"REPRESENTATIVE."      Prima   facie   means    executor    or    administrator, 
533 
meaning  is  not  definite,  533 
used  of   descendants,   533 
used  of  heirs  or  legal  successors,  533 
REPROPOUNDING  will  for  probate,  343 

REPUBLICATION  by  parol,  271 

of  will   revoked   by   later  will,   271-274 
definition,   303 
history  of  law,  304 
republication  at  common  law,  304 
at  modern  statutes,   305-311 
methods   of   republication,    306-311 

re-execution,  306 

by  codicil.   307 
effect  of  republication,  308 

validates    defective    will,    308,    311 

upon  devises  of  after-acquired  realty,  309 

revives    revoked   will,    310 

REPUGNANCY.      Last  clause   prevails,   503 
between  two  residuary  clauses,  510 
gift  over  after  fee  is  case  of,  575,  577 

gift  over  after  life  estate  with  general  power  of  disposition,  577 
remainder   after   fee,   void    for,   580 
whether  remainder  after   life  estate  with  power  of  disposing  of  fee, 

void  for,  581 
of  conditions   to   estate,   684 

postponing  payment  beyond  majority  held  void  for,  802 
See  Inconsistent  ProvisTons. 

REPUTATION  of  testator  for  insanity  not  admissible,  403 


1152  INDEX. 

(References  are  to  sections.) 

REQUESTS  in  will,  when  testamentary,  59 

of  testator  for  signature  -by  other,  necessary,  176 

witness  signing  without    request  of  testator,  does  not  invalidate  will 

otherwise    good,    190 
of  testator   for   witness   is  to   sign,  necessary,   218 
REQUISITES  of  valid  A^-ill,     See  Extrinsic  Elements. 
RES  GESTAE.     Declaration  of  testator  admissible  as  to  undue  influence, 
when,  423 
of  execution  admissible  in  undtie  influence,  429 
RESCISSION   of   equitable  transfer   did   not  prevent   revocation,   278 
RESIDENCE.     Where  residence  of  witness  is  necessary  to  appear  on  will, 
224 
devise  of,  controls  lot  number,   484 
held  material  in  determining  meaning  of  "family,"  528 

RESIDUARY  BEQUEST.     See  Residuary  Clause,  Residuary  Legacies. 
RESIDUARY  CLAUSE  in  codicil  supersedes  residuary  clause  in  will,  269 

passes   fee-simple,   482 

when   passing  after-acquired  realty,   489 

general    a.id    particular    distinguished,    505 

defined,  505 

form,   506 

effect   of   enumeration   of  articles   included   in,   506 

does  not  pass  fire  insurance,  507 

position  of,  in  will,  507 

liberally  construed,  507 

what  passes  by,  507 

failure  of  part  of,  508 

effect  of  failure  of  part  of,  508 

when   good    exercise   of    power,    698 

when   passing  lapsed   legacies   and   devises,   744 

when  passing  void  gift,   746 

blending  realty  and  personalty  as  charge,  755,  757 
RESIDUARY  DEVISE.     See  Residuary  Clause,  Residum. 
RESIDUARY  LEGACIES  abate  first,  772 
"RESIDUE"  passes  realty,  488 

special  meaning,  507 

shows  intent  to  blend  realty  and  personalty,  757 

of  specific  fund  held  specific,  767 
RESIDUUM.      Definition,    507 

pro    rata    distribtition    of,    509 

eff"ect  of  equal  distribution.  510 

when  lapsed  gift  becomes  part  of,  744 

lapse  of  part   of   residuum,   744 

when  void  gift  becomes  part  of,  746 

devolution  where  gift  of,  is  void,  746 

charged  with  debts,  764 

of   specific   fund,   whether    specific,    774 
"RESPECTIVE."     Gift  to    heirs,  creates  estate  in  common,  589 
RESTRAINT.      Condition    in,    of    marriage,    681 

condition   in,   of  litigation,   683 
RESTRAINT  OR  ALIENATION.     See  Alienation,  Restraint  on, 
RESULTING  TRUST  may  be  devised,  145 

what  is,  617 

in  realty  devised,  passes  by  will,  279 

RETROACTR^E  statutes  not  favored  by  construction,  21 
not   constitutional    after   death   of   testator,   22 
will   retroacts   to  death   of  testator   on   probate,   358 


INDEX.  1153 

(References  are  to  sections.) 

RETURN  (of  legatee).     Condition  requiring  return  and  demand  for  legacy, 

802 
REVERSION   is  not   "provision,"   293 
REVERSIBLE  ERROR.     What  is,  333 
REVIVAL.     See  Republication,  Revivok. 
REVIVOR  of  will  by  revocation  of  revoking  v^ill,  273 

change  of  circumstances  after  revocation  does  not  effect,  286 
8ee  Republication,  303-311 

REVOCABLE.     Whether  written  election  is,  731 

REVOCATION. 

I — In  general — 

what  constitutes  revocation,  25 

instrument   effecting    is    not    necessary    will,    46 

will   always    liable   to,    50 

even  if  joint,  68 

or   mutual,   G8 

or  made   in   pursuance  of  a  contract,   70 

whether  instrument  as  to  which  power  of  revocation  is  reserved 
is  necessarily  will,  52 

definition,  244 

history  of  law  of,  244 

distinguished   from  ademption,   781 

definition,  244 

history  of   law,  244 
11 — Classes  of  revocation — 

1.  Revocation  by  act  manifest  on  will,  245-261 
burning,  247 

what   is    burning,    247 

tearing,    248 

cutting,   248 

scratching,  248 

cancelling,  249 

cancelling   by   writing,    249 

when   partial    cancellation  revokes   entire  will,   254 

mutilation,  250 

obliteration,   251 

destruction,   252 
actual,  252 
constructive,    252 
of  duplicate  will,  253 
whether   effecting  partial   revocation,  254 

revocation    does   not   exist    if    revoking   act   is   prevented   by 
fraud,   255 

intention   to   revoke   necessary   to    revocation,   256 

who  can  revoke,  257 

insane  person  can  not  revoke,   257 

nor  person   suffering  from   delirium   tremens,   257 

no  revocation  if  act  done  under  mistake  of  fact,  258 

or   of   law,   259 

ineffective  attempt  to  alter  will  is  not  revocation,  200 

destruction    without    authority    of    testator    is    not    revoca- 
tion. 261 

2.  Revocation  by  later  instrument,  262-277 

statutes  as  to  revocation  by  act  on  instrument  do  not  apply, 

262 
revocation  by  informal   instrument,  263 
by  formal  instrument,  264 
by  holographic  will,  264 


1154  INDEX. 

(References  are  to  sections.) 

REVOCATION— Continued. 

by  nuncupative  will,  264 

by  revoking  instrument  which  is  not  a  will,  265 

intention  to  revoke  must  appear  on  face  of  instrument,  266 

express  revocation  clause  shows  intent  to  revoke,  267 

except  where  cancelled,   267 

or    inadvertently    inserted,    267 

later  will   revokes  if   inconsistent,  268 

codicil  prima  facie  supplemental  to,  not  inconsistent  with, 
will,  269,  758 

second  will  prima  facie  supersedes  first  will,  269 

except  where  intention  not  to  revoke  appears,  269 

effect  of  loss  of  later  will,  270 

effect  of  revocation  of  later  will  at  English  common  law,  271 

at  modern  English  statutes,  272 

at  American   common   law,   273 

at  American  statutes,  274 

conditional    revocation,    275-277 

knov/n    as    dependent    relative    revocation,    275 

revocation  by  act  manifest  on  instrument  to  carry  out  in- 
effective alteration  is  not  revocation,  2i6 

or  to  execute  ineffective  will  or  codicil,  276 

no   revocation    by    later    ineffective    instrument,   277 

except  where  second  instrument  fails  by  facts  dehors  the  in- 
strument,  277 

no  revocation  where  later  instrument  is  executed  under  mis- 
take of  law  or  fact  appearing  ori  will.  277 

otherwise  of  mistake  does  not  appear  on  will,  277 

3.  Revocation  by  alteration  of  estate,   278.   279 

rule  at  common  law,  278 

conveyance  of  realty  devised  worked  partial  or  total  revoca- 
tion,   278 
creation   of  particular  estate  did  not  revoke  will,   278 
transfer  of  personalty  did  not  cause  revocation,  278 
rule   at   modern    statutes,    279 

4.  Revocation   by  change   of  circumstances,   280-286 

what   change   in   circumstances   operates   as   revocation,   280, 
285 
marriage 

of  man,  no  revocation  at  common  law,   281 
of   woman,    revocation    at    common    law,    284 
under    modern    statutes,    281.    284 
birth  of  child  did  not  revoke  will   of  father,  282 
marriage   and   birth   of  child   revoked  will   if   child  not  pro- 
vided for,  282 
marriage  of  woman  operated  as  revocation,  284 
effect  of  modern  statutes,  284 
effect  of  change  not   specified  by  law,  285 
after   revocation,   further   change  can  not  revive  will,   283 
effect  of  birth  of  child,  at  common  law,  287 
under    modern    statutes.    287-296 

gift  to  wife  not  revoked  by  judgment  for  alimony.^  609 
murder  of  testator  by  devisee  is  not  revocation  of  will,  687 
III — Evidence — 

1.     Burden  of  proof — 
in   general,   448 
if  will  is  destroyed.  449 
where   revoking   will    itself    is   lost,    453 


INDEX.  1155 

(References  are  to   sections.) 

KEVOCATION— Continued. 

2.  Presumptions — 

where  will  is  missing,  449 

or  torn,  44!) 

where   one   of   duplicate   wills   is   lost,    253,    449 

where   second   will   is   suppressed,   454 

3.  Admissibility— 

declarations  of  testator  as  to  act  of  revocation  are  not  ad 

missible,   450 
but  are  as  to  his  intention,  450 
declarations  of  legatees,  451 
of  strangers,  452 
when    revoking    will    is    revoked,    evidence    of    intention,    271- 

274,  454 
proof  of  revoking  deed,  455 
REVOCATION   (of  election).     See  Election. 
EEVOCATION  CLAUSE.     EfTect  of,  267,  268 
REVOKED.     Writing  word  not  destruction,  252 
REVOKED  DEVISE  is  intestate  property,  406 
REVOKING   WILL.     Whether   probate  of.   involves   contest  of   first  will, 

322 
RIFLES.     Gift  of,  malces  recipient  a  "legatee,"  535 
"RIGHT  HEIRS."    Meaning  of,  515 

RIGHT  OF   ACTION  on   contracts  to  make  a  will,   76 
RIGHTS  OF  ENTRY.     Whether  devisable,  147 
ROGATIO  TESTIUM.     What  is,  237 

must  be  proved  for  valid  nuncupative  will,  447 
ROMAN  CATHOLIC.     Condition  against  legatee's  becoming  a,  682 
ROMAN  LAW.     Will  at,  6 
effect    on    English    law,    6 
origin  of  holographic  will,  229 
use  of  "nuncupative  will'"  in,  232 
will   drawn  by  beneficiary  void,   414 
ROOM.     Act  done  in  same  room,  prima  facie  in  presence,  210 
RULE   AGAINST   PERPETUITIES.     See  Pekpetxjities,   Rule   Against. 
RULE  IN  SHELLEY'S  CASE.     See  Shelley's  Case,  Rule  in. 
RULE  IN  WILD'S  CASE.     Sec  Wild's  Case,  Rule  in. 
RULES  01'  PROPERTY  compared  with   rules  of  construction,   459 


S 

SAILOR.     Who  is,  233 

nuncupative  will   of,   233 

SAILORS.     Gift  to  home  for,   is   charity,   648 

SALE.     When   judicial   sale  defeats   lien   of   legacy,   760 
of    chattel    bequeathed    causes    ademption,    780 
of  realty  works  ademption,  781 
See  Power  of  Sale. 

SALVATION  ARMY.     Validity  of  gift  to,  643 

SANITY.     Perfect,  not  requisite  to  testamentary  capacity,  94 
declaration  of  subscribing  witness  as  to,  inadmissible,  425 


1156  INDEX. 

(References  are  to  sections.) 

SATISFACTION  of  legacy,  not  to  be  tried  in  contest,  329 

express  provision  that  gift  to  creditor  is  in  lieu  of,  680 

whether    devise   is    in    satisfaction    of   antenuptial    contract,    717 

distinguished   from  ademption,   782 

of  debt,  informal,  790 

not  presumed  in  gift  to  debtor,  794 

right  of  set-ofi'  exists,  794 

presumed  where  gift  to  creditor  is  of  same  nature  as  claim  and  equally 
advantageous,  795 

not  presumed  otherwise,  796 

express  provision  for  satisfaction,  797 
SAVINGS  BANK.     Order  on,  when  testamentary,  56 
SCHEDULE.     Incorporation  of,  annexed  to  will,  162-167 
SCHEME    (of  charity).     Power  of  court  over,   655 

See  Cy  Pres. 
SCHOOLS.      Gift   for    public,    is    charity,    645    ' 
SCIENCE.     Gift  to  promote,  is  charity,  645 
SCRATCHING    surface    of    will    is    tearing,    24 
SEAL.    Addition  of,  does  not  invalidate  will,  44 

not  necessary  in  will,  170 

tearing  off  seal,  as  revocation,  248,  249 
SEALING.     What  is,  in  mystic  will,  243 
SEAMEN.     Wills  of,  233 

See  Sailor. 
SECOND   COUSIN.     Definition,   532 

excludes  first  cousin  once  removed,  532 
SECONDARY  EVIDENCE  of  contents  of  spoliated  will,  440 
SECRET  EXECUTION  OF  WILL  no  presumption  of  undue  infiuence,  429 
SECRET  TRUST.     Devolution  of,  466 

when  intestate  property,  406 
SECURITIES.      Whether  gift  of,  general,   specific  or  demonstrative,   767- 

770 
SEIZIN.     Effect  of  theory  of,  in  will,  10 

necessity  of  seizin  in  testator  for  valid  devise,  144 
SELECTION,  conferring  right  of,  on  legatee  creates  specific  legacy,  768 
SENILE  DEMENTIA.     Effect  on  testamentary  capacity,  102 

See  Testamextary  Capacity. 
SEPARATE  WILLS.     Probate  of,  314 
SEPARATE  TRACTS  may  pass  under  popular  name,  488 
SEPARATE  ESTATE    (of  married  woman).     Power  of  feme  covert  over, 
92 

how  created.    624 

nature  of,  624 
SEPARATE  USE,  624 

See  Separate  Estate. 
SEPARATION.      Gift    for    support    during,    valid,    681 

condition   requiring,  invalid,   681 
SEVERAL  PIECES.     Will  may  be  Avritten  on,   161 
SERVANTS.     Definition,  534 

do  not  include  public  employees,  535 
SERVICE  in  army'  or  navy,  what  is,  233 

SERVICES.     Rendition  of,  consideration  for  contract  to  devise,  72 
condition  as  to,  678 
held   condition  subsequent,   678 


INDEX.  11^'7 

(References  are  to  sections.) 
SETTLING  ESTATE,  rostponement  for  convenience  of,  548 

postponeinent   for   convenience  of,   does  not  violate   rule  against   per- 
petuities, 029 
SET-OFF   of   legacy   to   debtor   against   debt,   794 

SEVERALTY.    Gift  in,  not  gift  to  class,  542  ,    •   •    .    • 

interests   in,   distinguished   from   interests    in   common   and    joint    in- 
terests, 587 
SEVERANCE.  Words  of,  create  estate  in  common  in  gifts  to  two  or  more, 

588  .    ^ 

SEXUAL   INTERCOURSE.     Unlawful,   no   consideration    for   contract    .o 

devise,   72 
"SHARES."     When   passes   contingent  _remainders,   482 

does  not  pass   debenture   stock,   497 
"SHARE."     When  excludes  contingent  interests,   789 
"SHARE  AND   SHARE   ALIKE"   requires  distribution  per  capita,   554 
in  gift  to  heir,  557 
creates  estate  in  common,  589 
SHELLEY'S  CASE    (Rule  in),  at  common  law,  564 
underlying  reasons,   564 
feudal  in  origin,  564 
not  rule  of  construction,  564 

applies   to   leaseholds   and   equitable   estates,   564 
did  not  change  fee-tail  to  fee-simple,  564 

classes  of  statutes,   565  ,         ,-     -^  +;„„    kak 

statute  doe6  not  apply  if  words  are  used  as  limitotion,  565 
at  modern    statute,    when   rule   of   construction,    5bo 
efl'ect  of  gift  over  to  "heirs"  of  first  taker,  5*2 
application  to  personalty,  595 
SHIFTING   of   burden   of   proof,    369,    385 

uses.     See  Trusts. 
SHOTGUN  included  in  household  goods,  493 
SIGNATURE   of   testator,    170-187 
what  is,  170 

See  Extrinsic  Elements. 
by  testator,   170-187 

by  other  at  direction  of  testator,  174-179 
must  be  made  or  acknowledged  before  witnesses,   201-20/ 
must  be  visible  to  witnesses  to  constitute  acknowledgement.  205 
what  is  presence  during  writing^  212 
form  of,  as  denying  execution,  379 
SIGN  MANUAL.     Cij  pres  exercised  under,  655 

SIGNS.    Will  made  by,  47 

acknowledgment  of  signature  by.   204,   205 
witnesses    requested    to    attest    by,    218 
SILENCE.     When  equivalent  to  request,   204,   205,  218 
SILVER   PLATE.     Whether  furniture,   492 

SIMULTANEOUS   PRESENCE  of   subscribing  witness  not  necessary  un- 
ices specifically  required  by  statute,  216 
SINGULAR  includes  plural,  522 
SISTERS  may  include  half-blood,  530 

shown  to  be  mistake  for  nieces,  819 
SITUS  of  property  determines  jurisdiction   of  ancillary  probate,   315 
SLATE.     Will  written   on,   is  invalid,   159 


1158  INDEX. 

(References  are  to  sections.) 

SOCIAL  REFORM.    Gift  to  advance,  is  charity,  653 
SOCIATE  WORDS.    See  Context. 
SOCIETIES.     Gift   to   unincorporated,   643 
SOLDIER.     Who  is,  233 

nuncupative  will  of,   233 
SOLDIERS  AND  SAILORS.  Gift  to  home  for,  is  charity,  648 
SOLEJVIN   FORM  of  probate,   312 

SOLICITATION  to  make  wiU,  promise  to  cease,  no  consideration,  72 
SON.     See  Child,  Children,  Consanguinity. 
SOUND  MIND.     See  Testamentary  Capacity. 
SOURCE.     Description  of  property  by  reference  to,  480 
SPECIAL  POWDER.     Sec  Powers. 
SPECIFIC  BEQUEST.     See  Specific  Legacy. 
SPECIFIC  DEVISE  passes  mortgage,  483 
charge  of  legacy  upon,  758 

no  charge  by  blending  in  residuary  clause,  758 
SPECIFIC  ENJOYMENT.     Right  of  beneficiary  to,  689,  707 
SPECIFIC  LEGACY.     Defined,  768 
examples,   768 

not   favored  in  construction,  767 
abatement  of,  775  * 

SPECIAL   RESIDUARY   CLAUSE,   466 
SPECIE.     Gift  in,  does  not  imply  power  of  sale,  689 

does  not  require  conversion,  689 
SPECIFIC  PERFORMANCE  of  contract  to  devise,  79 
SPENDTHRIFT  TRUSTS   definition  and  validity,   685 
"SPINSTER   OR   UNMARRIED"   includes   widow,   537 
SPIRITUALISM,  111 

See  Testamentary  Capacity. 
SPIRITUALISTIC   AD"\^SER.     Gift  to,  not  conclusively   product   of  un- 
due influence,  420 
SPOLIATION    (partial).     Definition,  300 

effect  of  spoliation  by  stranger  to  will,  301 
effect  of  spoliation  by  beneficiary,  302 
SPOLIATION    (total).  • 

I — In  general — 
definition,   261 
is   not   revocation,   261 
of  later  will,   effe<?t  on   earlier,  270,   273 
II— Probate    of,    347-354 

See  Probate. 
Ill — Evidence    in — 

number  of  witnesses,  435 

declarations   of   testator.   435,   437,   438,   441 

evidence  of   existence   of   will,   436 

declarations  of  testator  as  to  existence,  437 

proof  of  execution,  438 

declarations  of  testator  inadmissible  as  to  execution,  438 

when  execution  is  presumed,  439 

how   contents   are   proved,   440 

secondary  evidence  of  contents,  440 

degrees  of  secondary  evidence,  440 

declarations  of  testator  as  to  contents,   441 

of  facts  of  destruction,  442 


INDEX.  ^^^® 


(References  are  to  sections.) 
SPOLIATION    (total)— Continued. 

rcSSnr'o/festator   as  to .  destruction    443 
admissions  of  parties  against  interest.  444 
evidence  of  character  of  testator,  445 

:\  ctSrlfTeS-  invested  in  destroying  w,,.,  445 
SPORT.     Gift  for,  not  charity,  054 
SPOUSE  of  testatrix,  competency  of,  200 

whether  spouse  is  "heir,"   513 
SPRINGING  USES.     See  Trusts. 

STABLE  entire,  does  not  pass  by  gift  of  premises,  488 
STATE  UNIVERSITY.     Gift  to,  is  chanty,  645 
STATUTES  de  donis,  11 
of   uses,    14 

'aff^tlnVtestamentary  capacity  of  feme  covert,  93 

on  mistake,   121 

in    spoliated    wills,    construction     434 

making   illegitimate   child   statutory   heir,   520 

^^?^1  ^'^iirjSnSing  construction  suit,  806 
STA^uTe  O^tEsiEiTAND  DISTRIBUTION.     Effect  on  construction 

of  will,  467  .        „. 

STATUTE  OF  FRAUDS  applies  to  contracts  to  devise,  74 
as  to  form  of  will,  157 
effect  on  attestation.  206 
effect  of  on  nuncupative  wills,  Zci^ 
revocation    vinder,    244 
STATUTE    OF    WILLS    as   to   form    of   will,    li)i 
revocation   under,   244  ^^ 

STEP-CHILDREN  not  included  under  "children,     52. 

where   not   included   in   ' '^^^'f'  J^^  .^^^    ,^^  verdict  in  contest,  346 
STIPULATION.     Attorney  can  not  enter  into,  lor  ver 
STIRPES,  PER.     See  Pkr  Capita  and  Pkk  Stirpes. 
STOCK.     Gift  of,  what  passes,  497 

effect  of  misnomer  of  c'orporation    497 
when  not  including  live  stock    4-J/ 
when  no  ademption  by  change  of  form,  497 
mistake  in  number  of  shares,  497 

tlL^:-^  2  li^^eval,   specific   or   demonstrative    767-770 
STOCK    (in   store).     Gift  of,  does  not  pass  "--^'/^-^ 
STOCK  DIVIDENDS.     Whether  income  or  principal,  602 
STRANGER.      Spoliation  by.    301 

QTT>T?VTR  Reference   to,    not   laid    out,    4S4  ,     •,•  „    ftvc; 

STREKib.  muit-  mirsuing  certain  studies,  Gto 

STUDENT.  Gift  to.  on  condition  of  pursuing 

gift  to,  by  such  description.   5.U 

SUBScTlBING  WITNESS.    «..  a™..o  W.N.S.. 
SUBSCRIPTION,  ^S8-224^_^    ^^^ 

risht  of,  whether  income  or  principal,  Wl- 


1160  INDEX. 


(References  are  to  sections.) 


SUBSEQUENT  CONDITIONS,  672 

See  Conditions. 
SUBSTITUTION  of  children  for  deceased  parents,   551 
SUBSTITUTIONAL  LEGACY.     Definition,  798 

subject   to   same  condition   as   original,   674 

provision  in  will   for,   676 

See  Cumulative  and  Substitutional  Legacies. 
SUCCESS  of  business,  what  is,   688 

SUCCESSIVE  GIFTS,  effect  of,  when  first  gifts  void  as  perpetuities,  630 
SUCCESSOR  of  executor,  whether  power  of  sale  exercisable  by,  692 
SUICIDE  does  not  raise  presumption  of  permanent  insanity,  384 
SUIT  to  construe  will,  806-816 

See  Construction,  Suit  fob. 
SUMMONS  in  construction  suit,  811 
SUNDAY  SCHOOL.     Gift  to,  is  charity,  649 
SUPERSTITIOUS  USES.     Validity  of  gift  for,  650 
SUPPLYING  WORDS  from  context,  473 
SUPPORT  as  consideration  for  contract  to  devise,  72 

direction  to  support  does  not  reduce  estate  charged,   570,   573 

charge  of  determines  duration   of   indefinite  devise,   573 

power  of  sale  for,  does  not  enlarge  fee,  576 

power  of  sale  of  personalty  for,  does  not  give  right  to  waste,  596 

gift  of  income  not  limited   to  support,   599 

duration  of  gift  for  support  at  homestead,   604 

what  is  direction  to,   604 

whether   included   in   gift  of   "home,"   604 

whether  support  or  income  given,  605 

one  entitled  can  not  have  possession  of  corpus,  605 

charge  for,  whether  trust,  613 

estate  on  condition  to,  is  vested,  662 

condition  as  to,   678 

held   condition    subsequent,    678 

gift  for  support  during  separation  from  husband  valid,   681 

when  amount  necessary  for,  is  to  be  determined  by  life  tenant,  696 

gift  for,  can  not  be  used  for  donations,  696 

when  direction  for,  is  charge,  751 

when   devisee   personally   liable   for.    754 

gift  for  support  of  minors,  when  due,  803 
SUPPRESSION  of  vivisection,   gift  for,   is  valid,   653 
"SURPLUS"  may  pass  realty,  479 

SURPLUSAGE    as    "hereinafter    provided,"    treated    as,    689 
SURROUNDING   FACTS.     Evidence  of,   admissible,   817 
"SURVIVING."     When  referring  to  death  of  testator  by   context,   546 
"SURVIVING  CHILDREN"  indicates  time  of  fixing  class,  546 
SURNAME.     See  Name. 
SURVIVOR.     Definition,   536 

when,   in   gift  to   class,   does   not   include  children   of   deceased   mem- 
bers, 536 

indicates  time  of  fixing  class,  546 

when  gift  to  includes  children   of  pre-deceased  members,   551 

gift  over  to,   reduces  interests   if  others  to   life  estates,   574 

trust  for  life  of,   618 

when  survivors  of  donees  may  exercise  power  of  sale,  692 
SURVIVORSHIP.     Interest  in  joint  tenancy  not  devisable  because  of,  140 
SUSPICION.     Unjust,  not  insane  delusion,   105 


INDEX.  1161 

(References  are   to  sections.) 
T 

TAIL.     Estate  in.     See  Fee-tail. 

TAX  SALE  as  revocation,  278 

TAXATION.     Gift  in  reduction  of,  is  valid,  644,  645 

"TAXES,"   does   not   include   street   assessments,    G02 

TAXES  deducted  from  income,  602 

unless  charged  on  other  property,  6U2 
TEACHERS.     Gift  for  salary  of,  held  charity,  645 
TEARING.     Revocation  by,  248 

when  held  cancelling,  249 

presumption  from.     See  Presumption. 
TECHNICAL  WORDS.     Misuse  of,  does  not  vitiate  will,  2 
TEMPORARY   INSANITY.      Effect   on   testamentary   capacity,    109 

no   presumption   of   continuance,    384 
TEMPORARY   WILL.     See   Contingent   Wills. 
TENANCY  IN  COMMON,     ^ee  Common,  Estate  in. 
TENANT  FOR  LIFE.     See  Life  Estate. 
TENANT  IN  TAIL.     See  Fee-tail. 
TENEMENTS  made  devisable  by  wills  act,  15 
TERM.     Gift  vesting  at  end  of,  is  perpetuity,  632 

of  years.      See   Leaseholds. 
TEST.     What   is,   for   presence,   210 

TESTAJVIENT.     Definition,   2 

when  made  at  age  earlier  than  that  at  which  will  can  be  made,  88 

where   requiring   fewer   witnesses   than   wills,    188 

beneficiary  may  prove  unattested  testament,  193 

whether  revoked  by  marriage  of  testatrix,  284 

and  will  compared  as  to  admissibility  of  evidence,  816 

evidence  to  explain  testaments,  compared  with  wills,  816 

history  of.     See  History  of  Law^  of  Wills. 

TESTAJMENTARY  CAPACITY. 
I — Substantive  law — 
under  original  wills  act,  15 
history  of  law  of,  84 
time  at  which  capacity  must  exist,  85 
is  assumed  in  undue  influeoice,  126 
specific   disqualifications. 

outlawry,  86 

attainder,  86 

alienage,    87 

nonage,   88 

coverture,   89-93 

coverture  at  common  law,  testaments,  89 

coverture  at  common  law,  wills,  90 

coverture  under  powers,  91 

coverture  in  equity,  92 

insanity,  94-117 

slight  insanity  does  not  destroy  testamentary  capacity ,  94 

criminal   responsibility  not  test,   95 

contractual   capacity  not  test,  96 

actual   test  enforced,  97 

degree  of  memory  necessary,  98 

effect  of   size  of   estate,    98 

classes  of  mentally  afflicted,   99 


J  IG2,  INDEX. 

(References  are  to  sections.) 

TESTAMENTARY  CAPACITY— Continued, 
idiocy,    100 

idiocy   incompatible  with   testamentary   capacity,    100 
imbecility,   101 

comparison   of   imbecility   with   idiocy,    101 
senile  dementia,  102 
old  age,  effect  of,   102 
insanity,   103-109 
definition,   103 

what  degree   destroys  testamentary  capacity,   103        .      - 
Insane  dehision — 
definition,    104 

delusion   must  be  genuine,   104 
must  consist  of  mistake  of  fact,   105 
mistake  must  not  be  based  on  evidence,  106 
nor  removable  by  evidence,   107 

effect  of   insane  delusion  on  testamentary  capacity,   108 
Lucid    interval — 
definition,   109 

effect  of  lucid  interval  on  testamentary  capacity,   109 
Eccentricity — 

definition,    110 

effect  on  testamentary  capacity,  110 
Spiritualism — 

belief  in,  not  insane  delusion,  111 
whether  amounting  to  undue  influence.  111 
Witchcraft,  belief  in,  not  insane  delusion,  111 
Faith  cure,  belief  in,  not  insane  delusion.  111 
Intoxication — 

effect   of,   on   testamentary   capacity,   112 
effect  at  date  of  execution  material,  112 
effect  of  use  of  drugs,  112 
Delirium — 

definition,    113 

presumption  as  to  continuance,  113 
lucid   interval   in,   113 
effect  on   testamentary  capacity,   113 
Delirium    Tremens — ■ 
definition,    114 

effect  on  testamentary  capacity,   114 
guardianship,    effect    of,    on    testamentary    capacity,    115 
disease,    physical    weakness    and    approaching    death,    effect    of, 

on  testamentary  capacity,   116 
Deaf,  dumb  and  blind — 

common  law  rule  as  to  testamentary  capacity  of,  117 
modern    rule,    117. 
judgment   admitting   will   to   probate   conclusively   determines,    341 
II — Evidence — 

burden  of  proof,   382 

rests    upon    contestant   by   majority    view,    382 

rests   upon   proponent   by   minority  view,    382 

presumption  of  sanity,   383 

presumption  of,  continuance  of,  mental  condition,  113,  384 

does  not  exist  where  insanity  of   temporary  type  js   shown,   384 

injustice  of  will  not  sufficient  to  establish  incapacity,   385 

biit  may  corroborate  affirmative  evidence  of,   385 

financial   standing  of  parties,   whether  admissible.   386 

acquisition    of   property   by   testator   admissible,    386 

advancements   admissible,   386 


INDEX.  "°3 


(References  are  to  sections.) 

opinion,    evidence,    388-393 

of   subscribing   witnesses,   SbH 

of  experts,  389 

:?'l,i,>erts,  who  know  facts  on  which  to  base  opinion.  390 

^^Sintuon-Ure^n  n,.e'af?o  opinion  of  sanity  and  one  of 

insanity,  390  .    . 

what  questions  call   for  opinion,   392 
what  questions   do   not   call   for   opinion,    391 
at  what  time  opinion   must  exist    ^^^  execution,   394 

^rJ'^^  ^^cfito^'XttStLis'siUe.  3M,  S., 

of  testator's  family,   395 

il'iHt;'tranr;  ,'uestio„s  not  eonCusive    398 

Change  of    feelings,    whether   >nadm,ss,ble,    399 

Tirior   will   admissible,   4UU  ,     ■u^^    Ann 

record   of   guardianship   admissible,   402 

unless  long  after  ^vill,  402 

SutTtlnT'teta'toff-o.  insanity  not  atoissible,  403 

SfoT  which  Wi»<  ''  'j-;,terty"S4ect   tl    IS,    19 

^r,'"o?7egiSonMStoVs  .U.  2i.  t5S 

^prer':fte';:u\ort'o\-x;i;rwife  and  children,  23 
in  favor  of  mistress  or   illegitimates,  24 
in  favor  of  charities,  25 

perpetuities,  2G  .pijNST      -See  Property. 

See  Perpetuities,  Rule  AOAiNbi. 

TESTAMENTARY  TRUSTS.     See  Trusts. 

TESTATOR,    definition,    2  ^^      g^g 

"THEN,"  use  of  word,  as  indicating  time  tor  nxin„ 

"THEIR"  read  as  "my,"  473 

THELLUSON'S   WILL,    638 

"THEN  HEIRS"   indicates  time  of  fixing  class,   546 

"THEN  LIVING"   indicates   time  of  fixing  class,   546 

provides  for  lapse,  551  _ 

THEOLOGICAL  SEMINARY    gift  to    -  chanty,  64     ^^^^^^^^^  ^^^^ 
THREATS  of  beneficiaries  admissible  to  show  u 
THREATS  of  stranger  to  will,  when  admissible,  425 
TILDEN'S  WILL,   643 
TIME  for  statutory  election,  ^29 

of  ascertaining  members  of  class,  54& 
TITLE,  failure  of,  to  devise,   793 
TOMB,  gift  providing  for,  488 

TOWN,  charitable  gift  to,  644  ^„>,^tp    ^57 

?HANSCRfPT  of  P^«edingv»t^^^^^^^^^^ 

^^SmIs'sIBLE  iTtEUESTS  a.e  aione  devisahie.   UO 


1164  INDEX. 

(References  are  to  sections.) 

TKAIJ^SPORTATION    (of  husband)    as  aflecting  testamentary  capacity  of 

wife,    89 
TRANSPOSITION    (of    clauses)    allowed    in    construction,    473 
TREATIES  may  protect  right  of  alien  to  take  by  devise,  151 
TRUST    AND    CONFIDENCE,    relations    of.      -S'ee    Confidential    Rela- 
tions. 

TRUSTEE,    whether    competent    subscribing    witness,    194 

of  beneficiary   corporation,  will   drawn  by,  no   presumption  of  undue 

influence,  414 
gift   to,   for   corporation,   539 

gift   to   natural   persons   as,   is   not   gift   to  corporation,   539 
power  of  sale  to,  does  not  enlarge  life  estate  to  fee,  576 
necessity  of,   610 
takes  legal  estate,  614 
powers    in    dry   trustee,    615 
rights  of,   on  failure  of   trust,   616 
takes   estate   necessary    to    perform   trust,    618 
discretionary   power,   619 

death  of  trustee,   defeats   discretionary   power,   619 
death    of,    does    not    defeat    ordinary    trust,    019 
effect  of  appointment  in  charitable  trust,  643 

discretion   of,   to  make  division,   creates   contingent  interest,   664 
when  trustee  puts  cestui  que  trust  to  election,  717 
death    of,    does    not   cause   lapse,    739 
bare  trustee.     See  Trusts    (Dry). 

TRUSTS,  law  controlling  in,  35 

declared  against  heirs  on  contract  to  make  a  will,  79 

resulting,    may    be    devised,     145 

ex  maleficio,  created  by   power,   413 

elements,  610 

whether  created  by  precatory  words,   611,   612 

whether   created   by   words   showing   motive,    613 

express    trust,    how    created,    614 

Dry    trust — 

defined,    615 

efl["ect  of,  615 

payment  may  be  direct  to  cestui  que  trust,  614 
^     failure   of   purpose,   effect   of,   616 
duration,   618 
discretion   of   trustee,   619 
Parol — 

not  enforceable,   620 

unless  ex  tnalificio,  621 
validity,   621 

void  if  in  violation  of  rule  against  perpetuity,  621 
interest  of  beneficiary,  nature  of,  622 
for  accumulations,   623 
separate   estate   of   married   woman,   623 
separate  trusts  can  not  be  added  to  make  perpetuity,  637 
distinguished   from   condition,   673 
spendthrift,   685 

does   not   lapse   by   death   of   trustee,    739 
whether  direction  for  support  is  trust  or  charge,  751 
what  is,   to  pay  debts,   764 

TRUSTS  EX  MALEFICIO.     Hce  Trusts. 
TWO   LIVES,   gift   for,   not   perpetuity.    637 
TYPE-WRITING,    will   valid    if    in.    159 


INDEX.  1165 

(References  are   to  sections.) 

U 

ULTRA  VIRES    condition,  gift  to-  corporation  on,  675 
UNATTACHED  WRITINGS.     See  Incorporation. 
UNATTESTED  will   or  codicil   is  invalid,   158,   190 
UNBORN    CHILD    as    affecting    revocation,    289 
UNCERTAINTY,  will  void  for,  487,  822 

avoids    contract    to    devise,    73 

gift   void    for,    devolution    of,    466 

of  devise  of  realty  rendered  clear  by  other  devises,  485 

in  description  of  realty  avoids   devise,   487 

devise  void   for,   of  description  of  property,   488 

pro   rata   distribution   of   residuum   void   for,   509 

gift  to  "family"   once  held  void   for,   528 

in   description    of   natural    person,    538 

name    prevails    over    description,    538 

in  description  of  corporation,  539 

in  name  does  not  avoid  gift  if  beneficiary  ascertainable,  539 

where  two  corporations  have  identical  name,  539 

as  to  duration  of  estate,  aided  by  direction  to  support,  573 

of  subsequent  gift,  will  not  cut  down  fee  already  given,  574 

of   beneficiary   avoids   gift,    583 

of   beneficiary   in   trust   GIO 

of    purpose    of    trust,    610 

may   exist,   of   beneficiaries   under   charitable  trust,    643 

in    purpose,    when    invalidating    charity,    654 

of  beneficiary,  devise  void  for,  678 

gift  void  for,  745 
UNCONSCIOUSNESS,  act  done  during,  is  not  in  presence,  209 
UNCONVERTED,   election   to   take  property,   718 
UNCHASTITY,  false  belief  in,  not  insane  delusion,  105 
UNDERVALUATION  of  property  disposed  of  by  will  is  binding,  490 
UNDISPOSED  OF  INTEREST.     See  Intestacy,  Intestate  Property. 

UNDUE  INFLUENCE 

I-^General    principles — 

belief   in    spiritualism,    112 

definition,    125 

compared  with  duress,  133 

theory   underlying  doctrine,    126 

testamentary  capacity   exists   if  undue  influence  is  material,   126 

test    of    undue    influence,    126 
Elements    of    undue    influence — 

influence  must   exist,    127 

must  overpower  mind   of   testator,   127 

classes   of   undue   influence,    128 

actual   undue  influence,    128 

special    forms,     128 

constructive  undue   influence,   408-421 

by   whom   undue   influence   may   be   exerted,    129 

at  what  time  undue  influence  must  exist,   130 

effect  of  undue  influence,    131 

may  avoid   part  of  will   only.   131 

is  not  shown  by  injustice  of  will,   only,   132 
one  under,  can  not  revoke,  257 
gift  to  medium  not  per  se  undue  influence,  420 
will  made  under  advice  of  spirits,  420 
gift  to  medium  caused  by  deceit  and  undue  influence,  420 


1166  INDEX. 

(References  are  to  sections.) 

UNDUE  INFLUENCE— Continued, 
charge  of  court  on,   333 

absence  of,  conclusively  established  by  judgment   in  contest,   341 
II — Evidence — 

1.  Burden   of   proof — 

evidence  in  such  cases  largely  circumstantial,  404,  406 
burden  of  proof,  405,  416 
shifting  of  burden,  406 

burden  extends  only  to  preponderance  of  evidence,  407 
burden  where  beneficiary   is  in  confidential   relations  with  testa- 
tator,   416 

2.  Presumptions — 

of  fact  are  available  to  proAe.  406 

in  undue  influence  are  generally  presumptions  of  fact  mere- 
ly, 408 
no  presumption   arises  out  of   relation  of   parent  and  child, 

409 
nor  out  of  relation  between  husband  and  wife,  410 
w'nere  unlawful   sexual   relations,   presumption   of   undue   in- 
fluence formerly  arose,  411 
but  not  at  modern   law,   411 
relation   is   important,   411 

relation   between   husband   and  wife   before   marriage   imma- 
terial,   412 
no  presumption  arises  as  between  attorney  and  client,  413 
except  where  attorney  drafts  the  will,  making  himself  bene- 
ficiary,   413 
rule  does  not  apply  when   attorney   is  merely  executor,   413 
presumption  arises   from  beneficiary's  drawing  will.  414 
from  beneficiary's  drawing  will  is  of  fact,  not  law,  414 
from    beneficiary's    drawing    will    may    be    rebutted,    414 
fact  from  beneficiary's  drawing  will,  how  rebutted,  414 
furnishing  data   for   will   does   not  create,   414 
no  presumption  where  father  of  beneficiary  draws  will,   414 
no  presumption  of,  where  attorney  of  beneficiary  draws  will, 

414,   415 
emploATiient  of  draughtsman  by  beneficiaries  does  not  create, 

414^   415 
presence  of  beneficiaries  at  execution  does  not  create,  415 
arises  where  beneficiary  is  in  confidential  relations  with  testa- 
tor,   416 
will  in  favor  of  one  business  relation  with  testator  does  not 

create,  416 
does  not  arise  where  beneficiary  is  friend  of  testator,  417 
arises  from  gift  to  nurse  or  physician  in  last  illness.  418 
does  not  arise  when  physician  advises  testator  to  arrange  his 

afl'airs,  418 
arises  from  gift  to  religious  adviser,  419 
does  not  arise  from  gift  to  church  of  pastor,  419 
opportunity  of  exerting  undue  influence  does  not  create  pre- 
sumption,   421 
inequality  of  distribution  does  not  create,  421 
3.      Questions    of   admissibility — 

physical   condition    of   testator   material,    126 

that  beneficiary  did  not  exert  influence,  129 

former  intention  of  testator  admissible.  422 

declarations    of    testator    admissible    to    show    feelings    and 

motives,  423 
declarations    of    testator    not    sufiicient    to    show,    without 
other   evidence.   423 


INDEX.  ll®*^ 

(References  are  to  sections.) 

TODUE  I^^,l^US^E-^,-;;SrSe  contradict  deC.ratious  offered  i.  evi- 

dence,  423  ,     •     •,,      .oq 

remote  declarations  not  admissible,  4Zc5  ^-  e         4- 

declarations   of   testator    inadmissible   if   narratives   of   past 

event,  423,  425  .^  .        .oi 

declarations  of  beneficiaries  admissible  if  res  gestae,  424 
declarations   of   beneficiaries   admissible  if  material    424 
declarations   of    beneficiaries,    admissible   if    against    sole   in- 
terest,   424  n    ■      •         AOA 
but  not  if  against  interest  of  other  beneficiaries,  424 
or  if  showing  opinion,  424                         ,       .        ^  i.-        ^f 
threats  of  beneficiary  admissible  if  referring  to  execution  of 

will,  424 
otherwise    inadmissible,    424  .      r   r     4.       f 

declarations  of   strangers  admissible  when  part  of  facts   ot 

execution,   425 
otherwise  inadmissible,  425 
fairness   of   will    important,   42f, 

fairness  and  justice  of  will  a  question  of  fact,  42b  _ 
relations  between  tes_tator,  beneficiaries  and  heirs  important 

generallv,    426,    427 
but  inadmissible  if  too  remote,  426 
when   conduct  of   beneficiary   admissible,   420 
facts  explanatory  of  will,   427  _ 

wealth   of   beneficiary,   whether   admissible    427 
source  of   testator's   wealth   admissible   when   affecting   will, 

497 
men'tal   and  physical  condition  of  testator  admissible,   428 
fact   of   non-revocation    of   will    admissible,    428 
causes  of  explaining  non-revocation  admissible,  428 
ignorance  of  testator  as  to  contents  of  will,  admissible,  428 
circumstances  of  execution,  admissible    42J 
hearsay  evidence  as  to  facts  of  execution,  admissible,  429 
opii^ioJs  of  persons  knowing  facts  as  to  existence  of  undue 

influence,   admissible,   430 
but  not  as  to  fairness  of  will,  430 
See  Duress,  Fraud,  Mistake. 
UNENFORCEABLE  DEBT,  eflfect  of  direction  to  pay,  498 
UNEQUAL- DIVISION  of  property  by  will  is  not  undue  influence,  L3- 

but  may  be  evidence  of  it,  426 
"UNEXPENDED  PART,"  gift  of,  shows  that  first  taker  had  fee,  5/. 
UNGRAMMATICAL    WILL,    how    to    be    construed,    471 
UNFINISHED    will    of    no    validity    at    modem    If^^^'    If?,  .,,   ■     ^^^. 

document  incorporated  in  will  can  not  be  furnished  after  will  is  exe 
cuted,    162,    163 
UNIFORMITY  of,  meaning  of,  words  in  ^viH,   469 
of  meaning  of  words  presumed,  515,  529,  53- 
of  "cousins"  in  Avill,  532 
of  "relatives,"   529 
UNIMPROVED   REAL   ESTATE,   what   is,    4S6 
UNINCORPORATED  ASSOCIATION,   charitable  devise  to,   643 
gift  to  poor  of,   is  charity,   647 
gift  to  Sunday  school  is  valid,  649 
UNITED  STATES,  gift  to,   154  ,    .  i         ,.cf    '?T=; 

UNITED  STATES  COURTS,  jurisdiction  of,  in  probate  and  contest, 
UNIVERSITY.     Gift  to  unincorporated   state  university,    154 


1168  INDEX. 

(References  are  to  sections.) 

GNJUST  WILL.    See  Injustice  of  Will. 
UNLAWFUL   INTENTION  not  presumed,  465 
UNLAWFUL   TRUST,    effect   of,   466 

not  implied  in  construction,  610 
•'UNMARRIED    WOMAN"    includes    widow,    284,    537 

but  not  married  woman,  284 
UNREASONABLE  DISPOSITION.     See  Injustice  of  Wnx. 
'UPLAND/'  devise  of,  819 
USE,    personalty    described    by,    495 

USE  AND  OCCUPATION,  gift  of,  when  passing  property,  561 
USES,   STATUTE  OF,  effect  on  wills,   14 


VALIDITY  of  devises  can  not  be  tested  by  contest,  323 

of  specific  bequest  not  determined  by  order  of  probate,  341 

VALUABLE  PAPERS,  when  holographic  will  must  be  found  among,  231 
446 
party   may   testify   to   finding  will   among,   361 

VALUATION  of  realty,   490 

gift  at,  when  charge,  753 
VALUE,   change  in,   of  testator's  estate,  no  revocation,   278 

gift  at   fixed  value  makes  case  for  election,   717 

set   by   testator   upon   devise   is   conclusive,   788 

legacies   for,   776 

legacy  for,   not  liable  to  abatement,   763,   776 
VENDEE,    devise   by,   of   realty,    contracted    for,   482 
V'ENDOR,  devise  by,  of  realty  to  be  sold,  482 
l^ENTRE  SA  MERE.     See  Child    (en  ventre  sa  mere). 
VERACITY   of   attesting  witness  may  be  attacked,   374 
VERBAL  INSTRUCTIONS,  reference  to,  in  will,  168 
VERDICT,    in    contest,    form    of,    335 
VESTED    INTEREST    is    devisable,    657 

power   of   disposition   of,    669 

early  vesting  of  legacies  preferred,  670 

rule  against  perpetuities  does  not  apply  to,  628,   631 
VESTED  REMAINDER.     See  Vested  Interest. 
VESTING,   when   time   of,   fixes   class,   549 

time  of,  controlled  by  rule  against  perpetuities,  620 

does  not  affect  restraints  on  alienation,  626 

gift  not  capable  of  vesting  within  proper  time,  void  by  rule  against 
perpeituities,     629 

defined,   656 

elements    involved    in,    656 

divesting  vested   gift,   656,   662,    666 

effect  of   gift  to  class  to  be  determined   in   future.   656,  665 

practical  distinction  between  vested  and  contingent  interests,  657 

early  vesting  preferred   in   construction,   658,   603 

Interests   in   realty — 

postponing    possession    does    not    defer    vesting,    if    for    interme 

diate   estate,   659,   663 
rule   where   no   intermediate  estate,   659 
modification   by   context,    659 
effect  of  gift  over,   659 


INDEX.  1169 

(References  are  to  sections.) 

VESTING — Continued. 

eflect  of   power   of   sale,   6G0 
uncertainty   of   amount   of   gift,   660 
opening   to   let  in   atter-born,   001 
defeated   on   condition   subsequent,   662 
death  of  life  tenant  before  testator,  662 
classes  of  contingencies,.  604 
Interests    in    personalty — 

postponement    of    possession,    666 
vested  interest  preferred  in  construction,  667 

postponement    of    possession    for    intermediate    interest,     jreatea 
vested     le'gaoy,     608 
not  for  intermediate  interest,  vested  right  unless  not  given  except 
by    direction    to   pay    legacy,  '669 
VIVISECTION,  gift  for  suppression  of,  is  valid,  653 
VOID  CONDITION  in  total  restraint  of  first  marriages,  681 

in  furtherance   of  divorce,  681 
VOID   DEED    does    not    revoke   will,    278 
VOID   judgment   in   contest   open   to  collateral   attack,    341 
VOID  LEGACIES  AND  DEVISES.     Who-  may  attack  gift  as  void,  25 
Classes  of  void  gifts — 
to  paramour,  25 
to    illegitimates,    25 
to  charities,  when,  26 
uncertain    gifts,    48,    822 
part  of  will   for   undue  influence,   131 
to    subscribing   witness,    196 
to    spouse   of    subscribing   witness,    when,    198 
to   beneficiary   who   spoliates    will,    302 
in  violation  of  Rule  against  Perpetuities,  629,   677 
definition   and   examples,   745 
devolution,  746 
where  part  of  residuum,   746 
where   not   part   of    residuum,   507,    746 
where  no  residuary  clause,  466 
of  gift  in  violation  of  Rule  against  Perpetuities,  629 

See  Conditions,  Perpetuities,  Rule  against. 
VOIDABLE   DEED  operated  as   revocation,   278 
VOLUNTARY  ASSOCIATION,  charitable  devise  to,  643 

gift  to  poor  of,  is  charity,  607 
VOLUNTEER,  whether  soldier,  233 
VOLUNTEER  REGIMENT,  gift  to,  is  charity,  653 


W 

WAIVER,  of  remainder,  584 

definition,  710 
WASTE  by  life  tenant,  prevented,  576 

prevented  in   life  interest  in  personalty,  596 
by  executor,  does  not  create  contribution,  793 
WASTE  PAPERS,  putting  will   in,   is  not  destruction,  252 
WATCH   AND   CHAIN   are   not   "furniture,"   492 
WATER  WORKS,  gift  to,  ornament  grounds  of,  charity,  652 
WEAKNESS,   physical,    116 

See    Testamentary    Capacity. 


1170  INDEX. 

(References  are  to  sections.) 

WEALTH   of   beneficiaries,    inadmissible   in    evidence,    386,    427 
of  testator,  source  of,  admissible  to  explain   will,  427 

WEARING   APPAREL,   gift   of,    495 

''WHAT  IS  LEFT,"   effect  of  gift  of,   695 

WIDOW,    whether    included    in    "family,"    528 

include  under  gift  to  "spinster  or  unmarried"  nieces,  537 

condition    against    remarriage,    valid,    571 

gift  to,  is  perpetuity  when  including  future  wife,  632 

WIDOW'S   ALLOWANCE   affected   by   election,   734 

WIDOWER.      Condition    against    remarriage    is    valid,    571 

WIDOWHOOD,  estate  for,  a   life   estate,   571 

WIFE.     Power   of   testator   to   exclude   wife,   23-25 
could    not   devise   to   husband,    156 
of  beneficiary  competency  as  subscribing  witness,  197 
of    executor,    competent,    199 
of  testator,   competency,  200 

not  presumed  to  exert  undue  influence  over  husband,  410 
relations  with  husband  before  marriage  do  not  show  undue  influence, 

412 
meaning  of   term.   511 
may  include  mistress,  511 
when   including   subsequent  wife,   511 
when   gift   to,   violates    rule   against   perpetuities,    511 
when  included  in  "heirs,"  513 
whether  included  in  "family,"  528 
gift    to    future,    is    perpetuity,    632 

WILD'S   CASE,   rule  on,   567 

WILI^ 

I — General   nature — 

relation  of  law  of,  to  other  titles,  1 

definition,  2 

what  property  could  be  disposed  of  by,  18,  19 

word,  not  conclusive  as  to   character   of  instrument,   44 

distinguished  from  testaments  as  to  attestation  by  witness,  188 

acknowledgment  of,  instead  of  signature,  206 

revoking  instrument  is  not,  265 

not  probated   at  common   law,   312 

must  be  probated  at  modern  statute,  314 

probated  without  codicil,  314 

how  to  be  described  in   contest  proceedings,   333 

is   admissible   in   evidence   at   contest,   368 

admissibility  of  previous  will  on  question  of  incapacity,  400 

when    not   "appointment    of    life    insurance,    500 

and  testaments  compared  to  admissibility  of  evidence.  816 

former,    admissible    in    construction,    819 

what  property  can  pass  by.     See  Property. 

made  in  pursuance  of  contract.     See  Contract  to  Make  Wills. 

history  of  law.     See  History  of  Law  of  Wills. 

revocation  of.     See  Revocatton. 

II — Inherent    elements — 

definition,  42 

distinguished  from  extrinsic,  42 
origin    and    classes.    43 

use  of   word   "will"   not  necessary,   44 

nor    conclusive,    44 

animus  testandi,  44-49 

what  wishes  are  testamentary,   45 


INDEX.  1171 

(References  are  to  sections.) 

WILL — Continued. 

what  wishes  are  not  testamentary,  46 
realty  of  intention,  47 

eixpression   of   intention   in   definite   terms,   48 

intention  that  will  shall  take  effect  only  at  death  of  testator,  49 
must  be  revocable,   50 

effect  of   omission   of   inherent   elements,   51 
wills  and  deeds  confused,  52,  53 
wills  and  contracts  confused,  54,   55 
wills  and   orders   confused,   50 
wills    and    powers    of    attorney    confused,    57 
informal  wills,  58 
precatory    words,    59 
contingent   wills,    60,    61 
WILLS  ACT,  original,  15 
WISH  of  testator,  whether  binding,  59 

See  Precatory  Trust. 
WITCHCRAFT  belief  in,  not  insane  delusion.   111 
WITHDRAWAL   of   written   election,   731 

"WITHOUT"  HEIRS,  ISSUE,  ETC.     See  Dying  without  Issue,    Issue. 
WITNESS,  who  is  competent  in  suit  on   contract  to   devise,   81 
subscribing,    attests    capacity   of    testator,    208 
effect   of,   signing   before   testator,   222 
word,   sufficient  as   attestation   clause,   223 
not  necessary   to  holographic  will,   229 
addition  of,  does  not  invalidate  holographic  wull,  230 
testator  must  call  on  witness  in  nuncupative  will,  237 
who  can  be  at  Louisiana  law,  241,  242 
examination   of,   at  probate,   320 

at  probate,  not  limited  to  subscribing  witnesses,  366 
number  of,  in  nuncupative  will,  238 
competency    of,    238 
in  spoliated  wills,   435 
WOMAN,   marriage   of,   revoked   her   will   at   common   law,   284 

efiect   of   modern   statutes,   284 
WOMAN   SUFFRAGE,  gift  to  promote,   is  valid,   053 
WORDS    (of  will)    show  intention  of  testator,   400 

presumed  to  have  same  meaning  throughout  ^^^ll,  469 
presumed    to    have    popular    meaning,    471 
WORDS,  when   amounting  to  election,  720 
WORDS  AND  PHRASES.     Above,  474 
and.  473 
any,  473 
bequeath,   473 
between,  473 
devise,  473 
donors,  473 
effects,  478 
estate,  476 
heir,   479 
hereinbefore,    474 
home    place,    488 
homstead.  488 
judge  of  probate,  474 
lawfully  begotten   heirs,   518. 
legacy,    474 
lot,   484 


1172  INDEX. 

(References  are  to  sections.) 

WORDS   AXD   PHRASES — Continued. 

mountain  land,  488 

next   oi    kin,    521 

not    previously    disposed    of,    503 

old    homestead,    488 

or,   473 

own  at  death,  475 

portion  after  my  father's  death,  479 

premises,  488 

property,  476,  488 

residue,    488 
-   shares,  482 

surplus,  479 

their,  473 

theirs.    513,   514 

unimproved  real  estate,  486 

/S'ee  also  Definitions. 
WORDLY  ESTATE.  See  Estate. 
WRITING,  will  requires  to  be  in,  816 

nuncupative  will  must  be  reduced  to,  239 

m    face   of   will,    when    cancelling,    249 
WRITTEN   ELECTION,   evidential  only,   unless   required   by   statute,   727 
WRITTEN  WILL,  whether  opportunity  to  make  written  will,  invalidates 
nuncupative   will,   234 


YACHT   not  article  of   "personal   use  and   ornament,"   495 
YACHTING,  gift  to  promote,  not  charity,   654 
YEAR.     Legacy  payable  in  one  year  after  death  of  testator,  803 
"YOUNGEST  GRANDCHILD,"  473 


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